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A   TREATISE 


ON  THE  LAW  OF 


SUITS    BY   ATldCHMENT 


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THE  UNi"TE.ry"  ^f^M:M^j  '' 


CHARLES  D.  DRAKE,  LL.D. 


THIRD     EDITION,     REVISED     AND     ENLARGED; 

WITH 


AN     APPENDIX, 


CONTAINING  THE   LEADING   STATUTORY   PROVISIONS   OF  THE    SEVERAL   STATE8 

.  AND   TERRITORIES   OF   THE   UNITED   STATES,   IN   RELATION 

TO    SUITS    BY   ATTACHMENT. 


BOSTON: 

LITTLE,    BROWN,    AND    COMPANY. 

1866. 


'      Efiteted",  according  to  Act  of  Congress,  in  the  year  1854,  by 

CHARLES     D.    DRAKE, 
in  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Missouri 


Entered,  according  to  Act  of  Congress,  in  the  year  1858,  by 

CHARLES     D.     DRAKE, 

in  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Missouri. 


Entered,  according  to  Act  of  Congi-ess,  in  the  year  1866,  by 

CHARLES     D.    DRAKE, 

in  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Missouri. 


T 


University  Press  :  Welch,  Bigelow,  &  Co., 
Ca.mlridob. 


S' 


<  X 


TO  ^,  , 

MY  BROTHER-IN-LAW, 

A.LEXANDER    H.    McGUFFEY,    ESQ., 

OP  CINCINNATI, 

AS   AN   EXPRESSION   OF   ADMIRATION,   RESPECT, 
AND    AFFECTION, 

THIS   WOEK    IS   DEDICATED. 


PKEFACE 

TO    THE    THIRD   EDITION. 


The  call  for  a  third  edition  of  this  work  leaves  no  room  for 
doubt  that  it  has  been  found  useful  to  the  profession,  and  will  hold 
its  place  in  their  libraries  until  superseded  by  some  better  treatise 
on  the  subject. 

This  has  led  me  to  increased  effort  to  make  the  book  more  ac- 
ceptable. It  has  been  revised  with  critical  care,  and  many  imper- 
fections of  style  and  arrangement  have  been  detected  and  removed, 
many  passages  rewritten,  and  a  new  chapter  —  the  thirty-fourth  — 
added. 

The  more  than  three  hundred  volumes  of  American  Reports, 
issued  since  the  publication  of  the  second  edition,  have  been  care- 
fully explored,  and  a  large  amount  of  valuable  matter  gleaned 
fi'om  them. 

Owing  to  the  printing  of  the  book  in  smaller  type  than  was 
previously  used,  the  number  of  its  pages  is  reduced  ;  but  the  quan- 
tity of  matter  incorporated  in  the  text  and  notes  is  much  greater 
than  in  the  last  edition,  and  more  than  six  hundred  additional 
cases  are  cited. 

I  may  be  excused  for  mentioning,  as  evidence  of  the  value  of 
such  a  work  under  any  of  the  attachment  systems  of  this  country, 
that  this  book  has  been  cited  as  authority  by  the  Supreme  Court  of 
the  United  States,  and  by  the  courts  of  many  of  the  States,  in  their 
reported  decisions  ;  and  I  have  reason  to  believe  that  in  every  part 
of  the  country  it  is  resorted  to  by  the  profession,  as  applicable, 


Vi  PREFACE  TO  THE   THIRD  EDITION. 

generally,  to  any  system  of  attachment  law.     It  is  gratifying  thus 
to  see  the  judgment  approved,  which  first  led  to  its  preparation. 

With  respectful  and  cordial  acknowledgment  of  the  favor  with 
which  the  work  has  been  received,  I  submit  this  edition  to  the 
profession. 

St.  Louis,  August,  1866. 


PREFACE 

TO    THE    FIRST   EDITION. 


laE  necessity  for  a  work  on  the  law  of  Suits  by  Attachment  in 
the  7nited  States   occurred  to  me  early  in  my  professional  life  ; 
but  Ishared  the  then  prevalent  impression  of  the  Bar,  that  the  At- 
tachuent  Acts  of  the  several  States  were  so  dissimilar  as  to  baffle 
an7  attempt  at  a  systematic  treatise  on  that  subject,  based  on  the 
ju-isprudence  of  the  whole  country  and  adapted  for  general  use. 
Soae  years  since,  however,  in  preparing  for  the  argument  of  a  ques- 
tioi  of  garnishment,  an  examination  of  the  Reports  and  legislation 
of  I  majority  of  the  States  satisfied  me  —  and  all  subsequent  re- 
sear,hes  have  but  confirmed  the  opinion— that  the  diversity  in 
the  tatutes  constituted  in  reality  no  impediment  of  any  moment 
to  tb  successful  .preparation  of  such  a  treatise.     The  purpose  to 
prepi-e  this  volume  was  then  formed,  and  has  been  prosecuted,  at 
irregi'.ar  intervals,  in  the  midst  of  other  and  more  pressing  avoca- 
tions, mtil  the  result  is  now  submitted  to  the  profession. 

Theralue  of  the  proceeding  by  Attachment  is  everywhere  as- 
serted a  the  reported  opinions  of  our  higher  State  courts,  and  is 
univerdly  and  practically  illustrated  in  the  history  of  the  Colo- 
nial, Teritorial,  and  State  legislation  of  this  country.  Among  tlie 
.  early  stuites  enacted,  have  always  been  those  authorizing  the  pre- 
liminaryattachment  of  the  property  of  debtors ;  and  the  general 
tendencyhas  been,  and  is,  to  enlarge  the  scope  and  increase  the 
ef!iciency)f  this  remedy.  Upon  these  grounds  alone  the  importance 
of  this  SDJect  might,  if  necessary,  be  amply  vindicated  ;  but  on 


viii         '  PREFACE   TO   THE   FIRST   EDITION. 

that  point  no  doubt  has  at  any  time  disturbed  the  prosecution  of 
my  task.  My  conviction  is,  that  on  no  branch  of  the  law  is  a  trea- 
tise more  needed  by  the  profession  in  tliis  country  than  on  this ; 
and  it  is  gratifying  to  know  that  such  is  the  general  opinion  of  my 
professional  brethren,  wherever  the  proposed  preparation  of  this/ 
work  has  been  known.  It  is  now  to  be  decided  whether  this  atV 
tempt  to  supply  an  acknowledged  need  will  be  regarded  with  equa/ 
favor.  / 

The  materials  here  wrought  together  are  almost  wholly  Ameti- 
can.  Great  Britian,  the  fountain  of,  and  exercising  continually  a 
marked  influence  over,  our  jurisprudence  generally,  contribute/  in 
this  department  comparatively  nothing.  In  that  country,  the  Bank- 
rupt law,  and  the  process  against  the  body,  leave  little  roon  or 
occasion  for  a  general  system  of  Attachment ;  while  the  linited 
proceeding  under  the  custom  of  London  gives  rise  to  few  jases 
which  find  their  way  into  the  courts  of  "Westminster  Hall.  Heje, 
however,  where  no  general  Bankrupt  law  exists,  and  imprisonmiit 
for  debt  is  to  a  great  extent  abolished,  it  is  widely  different,  ^le 
universal  use  of  this  remedy  fills  our  Reports  with  cases  presening 
every  variety  of  questions,  and  the  lapse  of  time  and  the  accunAla- 
tion  of  adjudications  seem  to  make  no  sensible  diminution  inthe 
amiual  number  of  reported  cases,  nor  any  great -difference  inlieir 
novelty  or  their  interest.  Hence  a  work  ?)f  this  description  raects 
in  a  high  degree  a  legal  system  and  a  branch  of  jurispruence 
peculiarly  our  own  ;  and  I  confess  to  somewhat  of  satisfacpn  at 
being  instrumental  in  presenting  to  the  Bar  of  the  United  Sates  a 
volume  which,  without  intentionally  slighting  what  is  to  befound 
in  the  English  Reports  on  the  subject,  may  be  justly  claim«l  to  be 
thoroughly  American.  / 

My  effort  has  been  to  make  it  methodical,  perspicuous,  acurate, 
and  sufficiently  full.  Had  I  at  any  time  supposed  it  free  pm  de- 
fects in  these  and  other  respects,  the  delusion  would  l^'v'e  been 
effectually  dispelled  by  the  perusal  of  it  in  print,  as  the  sfcets  (not 
read  by  me  in  the  proofs)  have  been  forwarded  to  me.  flany  de- 


PREFACE  TO  THE  FIRST  EDITION.  "  IX 

fects  and  blemishes  will  no  doubt  be  perceived  by  others,  as  they 
have  been  by  myself,  when  too  late  to  correct  them.  In  regard  to 
them  I  deprecate  neither  enlightened  criticism  nor  fair  censure  ; 
but  yet  my  trust  is  that  they  will  not  be  regarded  as  materially 
impairing  the  value  of  the  work,  and  that  this  essay  toward  dis- 
charging, in  part,  my  debt  to  the  profession  of  my  choice,  by  light 
ening  the  labors  of  my  compatriots  in  its  ranks,  may  be  found  a 
useful  aid,  and  may  meet  with  an  indulgent,  if  not  a  cordial  re- 
ception. 

It  were  improper  to  close  these  brief  prefatory  remarks  without 
an  acknowledgment  of  my  obligations  to  the  treatise  of  L.  S. 
Gushing,  Esq.,  on  the  Trustee  Process  of  Massachusetts  and  Maine, 
for  the  general  features  of  the  plan  of  arrangement  of  that  portion 
of  these  pages  relating  to  Garnishment  and  Garnishees. 

CHARLES  D.  DRAKE. 

St.  Louis,  Missouri,  July  1,  1854. 


NOTE. 

All  the  references  in  the  Table  of  Contents,  Index  to  Cases  cited,  and  Gen- 
eral Index,  are  to  the  Sections. 

The  number  of  the  last  section  on  each  page  is  placed  at  the  top ;  that  of  the 
page,  at  the  bottom,  in  brackets. 


TABLE  OF  CONTENTS. 


FAOB 

Alphabetical  Catalogue  of  American  Reports,     .        .        .         xix 


Index  to  Cases  Cited, xxvii 


CHAPTER  I. 

SECTION 

Origin,  Nature,  and  Objects  of  the  Remedy  by  Attachment,         .        .         1 — 8 


CHAPTER  n. 
For  what  Cause  of  Action  an  Attachment  may  issue,     ....       9 — 37 

CHAPTER   m. 

Absent,  Absconding,  Concealed,  and  Non-resident  Debtors;  and  Debt- 
ors removing  or  fraudulently  disposing  of  their  Property,  .         .         .     38 — 77 

CHAPTER  IV. 

Liability  of  Corporations  and  Representative  Persons  to  be  sued  by 

Attachment, 78 — 82 

CHAPTER  V. 
Affidavit  for  obtaining  an  Attachment, 83 — 113 

CHAPTER  VI. 

Attachment  Bonds 114; — 183 

b 


XIV  contents; 


CHAPTER  Vn. 

SECTION 

Execution  and  Return  of  an  Attachment, 183  a — 220 


CHAPTER  Vm. 

Effect  and  Office  of  an  Attactment, 221—231 

CHAPTER  IX. 

Attacliment  of  Real  Estate, 232 — 242 

CHAPTER  X. 

Attacliment  of  Personal  Property, 243 — 259 

CHAPTER  XI. 

Of  Simultaneous,  Successive,  Conflicting,  and  Fraudulent  Attachments,  260 — 289 

CHAPTER  Xn. 

Custody  of  Attached  Property, 290—311 

CHAPTER  Xm. 

Bail  and  Delivery  Bonds 312—343 

CHAPTER  XIV. 

Baihnent  of  Attached  Property, 344—396 

CHAPTER  XV. 

Attachments  improvidently  issued,  and  the  Means  of  defeating  them,  397 — 410 

CHAPTER  XVI. 

Dissolution  of  an  Attachment, .        .  411 — 435 


CONTENTS.  .  XV 

CHAPTER  XVn. 

SECTION 

Notice  to  Absent  Defendants  by  Publication, 436 — i49 

CHAPTER  XVm. 

Garnishment. —  General  Views.  —  Division  of  the  Subject,        .        .    450 — 467 

CHAPTER  XIX. 

Who  may  be  garnished.  —  Corporations.  —  Non-residents, .        .        .    468 — 478 

CHAPTER   XX. 

What  Personal  Property  in  the  Garnishee's  Hands  will  make  him  liable,  479 — 481 

CHAPTER  XXI. 

What  Possession  of  Personal  Property  by  a  Garnishee  wiU  make  him 

Uable, •     .        .    482—491 

CHAPTER  XXH. 

The  Garnishee's  Liability,  as  affected  by  the  Capacity  in  which  he 
holds  the  Defendant's  Property, 492 — 516 

CHAPTER  XXin. 

The  Garnishee's  Liability,  as  affected  by  Previous  Contracts  touching 

the  Defendant's  Property  in  his  Hands, 517 — 520 

CHAPTER  XXIV. 

The  Garnishee's  Liability,  as  affected  by  a  Previous  Assignment  of  the 
Defendant's  Property  in  his  Hands,  or  by  its  being  subject  to  a 
Lien,  Mortgage,  or  Pledge, 521 — 540 


CHAPTER  XXV. 

The  Garnishee's  Liability,  as  a  Debtor  of  the  Defendant.  —  General 

Views.  —  Division  of  the  Subject, 541 — 554 


Xvi  .  CONTENTS. 

CHAPTER  XXVL 

SECTION 

The  Garnishee's  Liability,  as  affected  by  the  Time  when  his  Debt  to 

the  Defendant  is  payable, 555 — 559 


CHAPTER  XXVH. 

The  Garnishee's  Liability,  as  affected  by  his  having  Co-debtors,  and  by 

the  Number  of  the  Defendants,  and  the  Number  of  his  Creditors,       560-T-572 


CHAPTER  XXVm. 

The  Garnishee's  Liability,  as  a  Party  to  a  Promissory  Note,       .         .     573—592 

CHAPTER  XXIX. 

The  Garnishee's  Liability,  as  affected  by  pre-existmg  Contracts  with 

the  Defendant  or  third  Persons, 593—597 

CHAPTER  XXX. 

The  Garnishee's  Liability,  as  affected  by  a  Fraudulent  Attempt  by  the 

Defendant  to  defeat  the  Payment  of  his  Debts,      ....     598—601 

CHAPTER  XXXI. 

The  Garnishee's  Liability,  as  affected  by  an  equitable  Assignment  of 

the  Debt, 602-615  a 

CHAPTER  XXXn. 

The  Garnishee's  Liability,  as  affected  by  the  Commencement,  Pen- 
dency, and  Completion  of  Legal  Proceedings  against  him  by  the 
Defendant,  for  the  Recovery  of  the  Debt, 616—627 

♦ 

CHAPTER  XXXin. 
Answer  of  the  Garnishee, 628—658 

CHAPTER  XXXIV. 
Judgment  against  the  Garnishee, ''^^  a— 659 


CONTENTS.  XVii 
CHAPTER  XXXV. 

SECTIOir 

Extent  of  Garnishee's  Liability,  as  to  Amount,  and  as  to  tHe  Time  to 

whicli  the  Garnishment  relates, 660 — 671 

CHAPTER  XXXVI. 

The  Garnishee's  Right  of  Defence  against  his  Liability  to  the  Defend- 
ant,           672—690 

CHAPTER    XXXVn. 

The  Garnishee's  Relation  to  the  Main  Action, 691 — 698 

CHAPTER  XXXVm. 

Where  Attachment  is  a  Defence,  and  the  Manner  of  Pleading  it,       .  699 — 723 

CHAPTER  XXXIX, 

Action  for  Malicious  Attachment, 724 — 745 


.     PAGE 

APPENDIX, «...  537 


b» 


ALPHABETICAL   CATALOGUE 


AMERICAN    REPORTS. 


Abbotts'  Admiralty  Reports  ;  U.  S.  Southern  Dist.  New  York  ;  1  vol. ;  1847- 

1850. 
Abbotts'  Practice  Reports  ;  New  York ;  17  vols. ;  1854-1864. 
Addison's  Reports ;  Pennsylvania;  1  vol.;  1791-1799. 
Aikens's  Reports  ;    Vermont;  2  vols. ;  1826-1827. 
Alabama  Reports  ;  35  vols. ;  1840-1860. 
Allen's  Reports ;  Massachusetts;  9  vols. ;  1861-1865. 
Anthon's  Nisi  Prius  Cases;  New  York;  1  vol.;  1808-1818. 
Arkansas  Reports  ;  18  vols.;  1837-1857. 
Ashmead's  Reports;  Pennsylvania;  2  vols.  ;  1808-1841. 

Bailey's  Reports  ;  South  Carolina  ;  2  vols. ;  1828-1832. 

Bailey's  Equity  Reports  ;  South  Carolina  ;  1  vol.  ;  1830-1831. 

Baldwin's  Reports;  U.  S.  3d  Circuit;  1  vol. ;  1829-1833. 

Barbour's  Reports ;  New  York  ;  43  vols. ;  1847-1864. 

Barbour's  Chancery  Reports  ;  New  York;  3  vols. ;  1845-1848. 

Bay's  Reports;  South  Carolina;  2  vols.  ;  1783-1804. 

Beasley's  Reports  ;  New  Jersey;  2  vols.  ;  1858-1860. 

Bee's  Reports  ;  U.  S.  Dist.  of  South  Carolina;  1  vol. ;  1792-1809. 

Bibb's  Reports ;  Kentucky;  4  vols.  ;  1808->817. 

Binney's  Reports  ;  Pennsylvania;  6  vols. ;  1799-1814. 

Black's  Reports ;  U.  S.  Supreme  Court;  2  vols. ;  1861-1862. 

Blackford's  Reports  ;  Indiana;  8  vols. ;  1817-1847. 

Bland's  Chancery  Reports;  Maryland;  3  vols.;  1811-1832. 

Blatchford's  Reports  ;  U.  S.  2d  Circuit ;  2  vols. ;  1845-1853. 

Blatchford  &  Rowland's  Reports ;  U.  S.  Southern  Dist.  of  New  York ;  1  vol. ; 

1827-1837. 
Bosworth's  Reports;  New  York;  9  vols.  ;  1856-1863. 
Bradford's  Reports  ;  New  York  ;  4  vols. ;  1849-185  7. 
Brayton's  Reports ;  Vermont;  1vol.;  1815-1819. 
Breese's  Reports  ;  is  vol.  1  of  Illinois  Reports. 
Brevard's  Reports;  South  Carolina;   3  vols.;  1793-1816. 
Brightley's  Reports ;  Pennsylvania;  1vol.;  1809-1851. 
Brockenbrough's  Reports;  U.  S.  4th  Circuit;  2  vols.;  1802-1833. 


XX  ALPHABETICAL   CATALOGUE 

Browne's  Reports  ;  Pennsylvania  ;  2  vols. ;  1806-1814. 
Burnett's  Reports  ;  Wisconsin  ;  1  vol. ;  1842. 
Busbee's  Reports ;  North  Carolina;  1  vol.;  1852-1853. 
Busbee's  Equity  RejDorts  ;  North  Carolina  ;  1  vol. ;  1852-1853. 

Gaines's  Cases;  New  York;  2  vols,  in  1  ;  1804-1805. 

Caines's  Reports ;  New  York  ;  3  vols. ;  1803-1805. 

California  Reports  ;  20  vols. ;  1850-1862. 

Call's  Reports  ;  Virginia;  6  vols. ;  1797-1825. 

Carolina  Law  Repository  ;  North  Carolina  ;  2  vols. ;  1813-1816. 

Chandler's  Reports  ;  Wisconsin;  4  vols. ;  1849-1852. 

Charlton's  (T.  U.  P.)  Reports;  Georgia;  1  vol.;  1805-1810. 

Charlton's  (R.  M.)  Reports;  Georgia;  1  vol.;  1811-1837. 

Cheves's  (Law  and  Equity)  Reports;  South  Carolina;  2  vols,  in  1  ;  1839-1840. 

Chipman's  (N.)  Repoi-ts ;  Vermont;  1  vol.;  1789-1791. 

Chipman's  (D.)  Reports;  Vermont;  2  vols. ;  1789-1825. 

Clarke's  Chancery  Reports  ;  New  York  ;  1  vol.  ;  1839-1841. 

Code  Reporter ;  New  York;  3  vols. ;   1848-1850. 

Code  Reports;  New  York;  1  vol.;  1851-1855. 

Coleman's  Cases;  New  York;  1  vol.;  1794-1800. 

*Coleman  &  Caines's  Cases;  New  York;  1  vol.  ;  1794-1805. 

Comstock's  Reports  ;  New  York  ;  4  vols. ;  1847-1851. 

Conference  Reports  ;  North  Carolina ;  1vol.;  1800-1804, 

Connecticut  Reports;  31  vols.  ;  1814-1863. 

f  Constitutional  Court  Reports,  by  Treadway ;  South  Carolina;  2  vols.;  1812- 

1816. 
^Constitutional  Court  Reports,  by  Mills;  South  Carolina;  2  vols. ;  1817-1818. 
Cooke's  Reports  ;  Tennessee;  1vol.;  1811-1814. 
Cowen's  Reports;  New  York;  9  vols. ;  1823-1829. 
Coxe's  Reports  ;  New  Jersey  ;  1  vol.;  1790-1795. 

Crabbe's  Reports;  U.  S.  Eastern  Dist.  of  Pennsylvania;  1  vol.;   1836-1846. 
Cranch's  Reports;  U.  S.  Supreme  Court;  9  vols.  ;  1800-1815. 
Cranch's  Circuit  Court  Reports  ;  U.  S.  Circuit  Court  of  District  of  Columbia  ;  6 

vols.;  1801-1841. 
Curtis's  Reports;  U.  S.  1st  Circuit;  2  vols.;  1851-1856. 
Cusliing's  Reports  ;  Massachusetts;  12  vols. ;  1848-1853. 

iJallas's  Reports;  U.  S.  Supreme  Court,  and  Pennsylvania;  4  vols.;  1754-1806. 

Dana's  Reports ;  Kentucky;  9  vols. ;  1833-1840. 

Daveis's  Reports  ;  U.  S.  Dist.  of  Maine  ;  1  vol. ;  1839-1849. 

Day's  Reports ;  Connecticut;  5  vols. ;  1802-1813. 

Denio's  Reports;  New  York;  5  vols.;  1845-1848. 

Dessaussure's  Chancery  Reports;  South  Carolina;  4  vols.;  1784-1817. 

Devereux's  Reports;  North  Carolina;  4  vols.  ;  1826-1834. 

*  This  is  a  reprint  of  Coleman's  Cases  entire,  with  additional  cases  reported  by  Caines. 
t  Xo  Reporter's  name  given:  generally  cited  by  the  name  of  the  pnljlisher,  Treadway. 
I  No  Reporter's  name  given:  generally  cited  by  the  name  of  the  ;nil>li>her,  Jlills. 


OF  AMERICAN  REPORTS.  XXI 

Devereux's  Equity  Reports  :  North  Carolina;  2  vols.;  1828-1834. 

Devereux  &  Battle's  Reports  ;  North  Carolina ;  4  vols,  in  3  ;  1834-1839. 

Devereiix  &  Battle's  Equity  Reports  ;  North  Carolina;  2  vols. ;  1834-1840. 

Douglass's  Reports  ;  Michigan;  2  vols  ;  1843-1847. 

Dudley's  Reports  ;  Georgia;  1vol.;  1831-1833. 

Dudley's  Reports  ;  South  Carolina  ;  1vol.;  1837-1838. 

Dudley's  Equity  Reports  ;  South  Carolina  ;  1vol.;  1837-1838. 

Duer's  Reports;  New  York;  6  vols. ;  1852-1856. 

Dutcher's  Reports  ;  New  Jersey;  2  vols. ;  1855-1857. 

Duvall's  Reports ;  Kentucky;  1vol.;  1863-1864. 

Edwards's  Chancery  Reports  ;  New  York  ;  4  vols. ;  1831-1850. 

Florida  Reports ;  8  vols. ;  1846-1859. 

Foster's  Reports;  New  Hampshire;  11  vols.;  1850-1855.    Should  be  vols.  21-31 

of  New  Hampshire  Reports. 
Freeman's  Reports  ;  Mississippi ;  1  vol. ;  1839-1843. 

Gallison's  Reports;  U.  S.  1st  Circuit;  2  vols.;  1812-1815. 

Georgia  Decisions;  1vol.  ;  1842-1843. 

Georgia  Reports ;  29  vols. ;  1846-1860. 

Gill's  Reports  ;  Maryland;  9  vols. ;  1843-1851. 

Gill  &  Johnson's  Reports  ;  Maryland;  10  vols. ;  1829-1843. 

Gilman's  Reports;  are  vols.  6-10  of  Illinois  Reports. 

Gilmer's  Reports ;  Virginia;  1vol.;  1820-1821. 

Gilpin's  Reports  ;  U.  S.  East.  Dist.  of  Pennsylvania;  1  vol.;  1828-1836. 

Grant's  Reports  ;  Pennsylvania;  3  vols. ;   1852-1863. 

Grattan's  Reports ;  Virginia;  15  vols. ;  1844-1860. 

Gray's  Reports ;  Massachusetts;  14  vols. ;  1854-1860.  * 

Green's  Reports  ;  New  Jersey  ;  3  vols. ;  1831-1836. 

Green's  Chancery  Reports  ;  New  Jersey  ;  3  vols. ;  1838-1846. 

Greene's  (G.)  Reports;  Iowa;  3  vols.;  1847-1852. 

Hall's  Reports;  New  York  ;  2  vols.  ;  1828-1829. 
Halsted's  Reports ;  New  Jersey  ;  7  vols. ;  1821-1831. 
Halsted's  Chancery  Reports  ;  New  Jersey  ;  4  vols. ;  1845-1852. 
Handy's  Reports ;  Ohio;  2  vols..;  1854-1856. 
Hardin's  Reports ;  Kentucky;  1vol.;  1805-1808. 
Harrington's  Reports  ;  Delaware;  5  vols. ;  1832-1855. 
Harrington's  Chancery  Reports  ;  ]Michigan  ;  1  vol.;  1838-1842. 
Hai-ris  &  Gill's  Reports;  Maryland  ;  2  vols. ;  1826-1829. 
Harris  &  Johnson's  Reports  ;  Maryland  ;  7  vols.  ;  1800-1826. 
Harris  &  McHenry's  Reports ;  Maryland  ;  4  vols. ;  1 700-1 799. 
Harrison's  Reports ;  New  Jersey;  4  vols. ;  1837-1842. 
Harper's  Reports ;  South  Carolina ;  1vol.;  182.S-1824. 
Harper's  Equity  Reports  ;  South  Carolina  ;  1vol.;  1824. 
Hawks's  Reports  ;  North  Carolina  ;  4  vols. ;  1820-1826. 


XXii  ALPHABETICAL   CATALOGUE 

Haywood's  Reports  ;  North  Carolina;  2  vols. ;  1789-1806. 

Haywood's  Reports  ;  Tennessee;  3  vols. ;  1816-1818. 

Head's  Reports  ;  Tennessee  ;  2  vols. ;  1858-1860. 

Hempstead's  Reports ;  Arkansas  ;  U.  S.  Circuit  &  District  of  Arkansas ;  1  vol. ; 

1820-1856. 
Hening  &  Munford's  Reports  ;  Virginia  ;  4  vols. ;  1806-1809. 
Hill's  Reports  ;  New  York  ;  7  vols. ;  1841-1845. 
Hill's  Reports;  South  Carolina;  3  vols.;  1833-1837. 
Hill's  Chancery  Reports  ;  South  Carolina  ;  2  vols. ;  1838. 
Hilton's  Reports  ;  New  York  ;  2  vols. ;  1855-1859. 
Hoffman's  Reports;  New  York;  1  voL  ;  1839-1840. 
Hopkins's  Reports;  New  York  ;  1  vol.  ;  1823-1826. 
Hopkinson's  Admiralty  Cases  ;  Pennsylvania  ;  1  vol. ;  1 785-1 786. 
Howard's  Reports;  U.  S.  Supreme  Court;  24  vols.;  1843-1860. 
Howard's  Reports  ;  Mississippi;  7  vols. ;  1834-1843. 
Howard's  Practice  Reports;  New  York;  29  vols.;  1844-1865. 
Hughes's  Reports ;  Kentucky;  1vol.;   1785-1801. 
Humphrey's  Reports ;  Tennessee;  11  vols. ;  1839-1851. 

Illindis  Reports;    33  vols.;    1819-1857;    embracing   Breese's  Reports,    1  vol.; 

Scammon's  Reports,  4  vols. ;  Oilman's  Reports,  5  vols. ;  and  twenty-three  vols. 

styled  Illinois  Reports. 
Indiana  Reports  ;  24  vols. ;  1848-1865. 
Iowa  Reports;  16  vols.  ;  1855-1864. 
Iredell's  Reports  ;  North  Carolina  ;  13  vols. ;  1840-1852. 
Iredell's  Equity  Reports;  North  Carolina;  8  vols.  ;  1840-1852. 

Jefferson's  Reports ;  Yirginia;  1vol.;  1730-1740;  1768-1772. 
Johns9n's  Cases;  New  York;  3  vols.;  1799-1803. 
Johnson's  Reports ;  New  York  ;  20  vols.;  1806-1823. 
Johnson's  Chancery  Reports  ;  New  York  ;  7  vols. ;  1814-1823. 
Jones's  Reports;  North  Carolina;  6  vols. ;  1853-1859. 
Jones's  Equity  Reports;  North  Carolina;  4  vols.;  1853-1859. 

Kentucky  Decisions  ;  1vol.;  1801-1805. 

Kernan's  Reports;  New  York;  4  vols.;  1854-1857. 

Kirby's  Reports ;  Connecticut;  1vol.;  1785-1788. 

Lalor's  Reports;  New  York;  1  vol.;  1842-1844. 
Leigh's  Reports  ;  Virginia;  12  vols. ;  1829-1841. 
Littell's  Reports  ;  Kentucky;  5  vols. ;  1822-1824. 
Littell's  Select  Cases;  Kentucky;  1  vol.;  1795-1821. 
Louisiana  Reports  ;  19  vols.;  1830-1841. 
Louisiana  Annual  Reports ;  15  vols. ;  1846-1860. 

McAllister's  Reports;  U.  S.  Circuit  for  California;  1  vol. ;  1855-1859. 
Mc  Carter's  Reports  ;  New  Jersey  ;  1  vol.;  18G1-1862. 


OF  AMERICAN  REPOETS.  Xxiii 

Mc Cord's  Reports ;  South  Carolina;  4  vols. ;  1820-1828. 

McCord's  Chancery  Reports;  South  Carolina;  2  vols. ;  1825-1827. 

McLean's  Reports;  U.  S.  7th  Circuit;  6  vols.;  1829-1854. 

McMullan's  Reports  ;  South  Carolina  ;  2  vols. ;  1835-1842. 

McMullan's  Equity  Reports ;  South  Carolina;  1vol.;  1840-1842. 

Maine  Reports  ;  50  vols.  ;  1820-1862. 

Marshall's  (A.  K.)  Reports;  Kentucky;  3  vols.;  1817-1821. 

Marshall's  (J.  J.)  Reports;  Kentucky;  7  vols.;  1829-1832. 

Martin's  Reports;  North  Carolina;  2  vols. ;  1790-1796. 

Martin's  Reports ;  Louisiana;  12  vols. ;  1809-1823. 

Martin's  Reports  ;  New  Series  ;  Louisiana;  8  vols. ;  1823-1830. 

Martin  &  Yerger's  Reports;  Tennessee;  1  vol.;  1825-1828. 

Maryland  Reports;  20  vols.  1851-1863. 

Maryland  Chancery  Reports;  4  vols.;  1847-1854. 

Mason's  Reports;  U.  S.  1st  Circuit ;  5  vols. ;  1816-1830. 

Massachusetts  Reports  ;  17  vols.;  1804-1822. 

Meigs's  Reports ;  Tennessee;  1vol.;  1838-1839. 

Metcalf's  Reports ;  Massachusetts  ;  13  vols. ;  1840-1847. 

Metcalfe's  Reports ;  Kentucky;  4  vols. ;  1858-1863. 

Michigan  Reports  ;  13  vols. ;  1847-1865. 

Miles's  Reports  ;  Pennsylvania  ;  2  vols. ;  1835-1840. 

Mnnesota  Reports ;  9  vols. ;  1851-1864. 

Minor's  Reports ;  Alabama;  1vol.;  1820-1826. 

Mssissippi  Reports ;  vols.  23-37;  1850-1859. 

Missouri  Reports  ;  36  vols. ;  1821-1865. 

*Monroe's  Reports  ;  Kentucky  ;  7  vols. ;  1824-1828. 

Monroe's  (B.)  Reports;  Kentucky;  18  vols. ;  1840-1857. 

Morris's  Reports ;  Iowa;  1vol.;  1839-1845. 

Munford's  Reports  ;  Virginia;  6  vols. ;  1810-1820. 

Murphey's  Reports  ;  North  Carolina ;  3  vols. ;  1804-1819.  * 

fNew  Hampshire  Reports;  vols.  1-20,  1816-1849  ;  vols.  32-44,  1855-1863. 

New  York  Reports  ;  vols.  15-32  ;  1857-1865. 

North  Carolina  Term  Reports;  1  vol.;  1816-1818. 

Nott  &  McCord's  Reports  ;  South  CaroHna;  2  vols. ;  1817-1820. 

Ohio  Reports  ;  20  vols. ;  1821-1851. 

Ohio  State  Reports;  15  vols. ;  1852-1864. 

Olcott's  Reports  ;  U.  S.  Southern  Dist.  of  New  York  ;  1  vol.  1843-1850. 

Paige's  Chancery  Reports;  New  York;  11  vols.  ;  1828-1845. 

*  The  cases  reported  in  2  Monroe,  being  those  decided  by  the  "  New  Court,"  —  a  judicial 
tribunal  which  was  declared  to  be  unconstitutional,  —  are  not  regarded  as  authority  in  Ken- 
tucky. 

t  The  hiatus  in  the  numbering  of  the  New  Hampshire  Reports  is  caused  by  the  publication 
of  eleven  volumes  of  the  Reports  of  that  State  under  the  title  of  "  Foster's  Reports  "  ; 
which  should  be  vols.  21-31  of  New  Hampshire  Reports;  and  they  are  now  frequently  cited 
in  that  State  under  the  latter  title,  with  the  volume  number  they  would  have  had,  if  they 
had  been  published  by  that  name  in  regular  series. 


XXIV  ALPHABETICAL  CATALOGUE 

Paine's  Reports ;  U.  S.  2d  Circuit;  2  vols.;  1810-1840. 

Parker's  Criminal  Reports;  New  York;  5  vols.;  1839-1865. 

Parsons's  Select  Equity  Cases;  Pennsylvania;  2  vols. ;  1841-1850. 

Patton,jr.,  &  Heath's  Reports;  Virginia;  2  vols. ;  1855-1857. 

Peck's  Reports  ;  Tennessee  ;  1  vol. ;  1822-1824. 

Pennington's  Reports;  New  Jersey;  2  vols,  in  1  ;  1806-1813. 

Pennsylvania  State  Reports;  49  vols.;  1844-1865. 

Penrose  &  "Watts's  Reports  ;  Pennsylvania;  3  vols. ;  1829-1832. 

Peters's  Reports;  U.  S.  Supreme  Court;  16  vols.;  1828-1842. 

Peters's  Circuit  Court  Reports;  U.  S.  Sd  Circuit;  1  vol.;  1803-1818. 

Peters's  Admiralty  Decisions  ;  U.  S.  Dist.  of  Pennsylvania;  2  vols. ;  1792-1807. , 

Pickering's  Reports ;  Massachusetts  ;  24  vols. ;  1822-1840. 

Porter's  Reports ;  Alabama;  9  vols. ;  1834-1839. 

Quincy's  Reports  ;  Massachusetts;  1  vol.;  1761-1772. 

Randolph's  Reports  ;  Virginia;  6  vols. ;  1821-1828. 

Rawle's  Reports ;  Pennsylvania  ;  5  vols. ;  1828-1835. 

Redfield's  Reports  ;  New  York;  1vol.;  1857-1863. 

PUiode  Island  Reports  ;  7  vols. ;  1828-1863. 

Rice's  Reports  ;  South  Carolina  ;  1vol.;  1838-1839. 

Rice's  Chancery  Reports;  South  Carolina;  1  vol. ;  1838-1839. 

Richardson's  Reports;    South  Carolina;  12  vols.;  vols.   1-4,  1844-1847;  vols. 

5-12,  1850-1860. 
Richardson's  Equity  Reports;   South  Carolina;  10  vols.;  vdls.  1  and  2,  1844- 

1846;  vols.  3-10,  1850-1859. 
Riley's  Reports  ;  South  Carolina;  1vol.;  1836-1837. 
Riley's  Chancery  Reports;  South  Carolina;  1  vol.;  1836-1837. 
Robinson's  Reports  ;  Louisiana;  12  vols. ;  1841-1846. 
Robinson's  Reports  ;  Virginia;  2  vols. ;  1842-1844. 
Rogers's  City  Hall  Recorder  ;  New  York  ;  6  vols.;  1816-1821. 
Root's  Reports  ;  Connecticut;  2  vols.;  1789-1798, 

Sandford's  Superior  Court  Reports  ;  New  York  ;  5  vols. ;  1847-1852. 

Sandford's  Chancery  Rfeports  ;  New  York  ;  4  vols.  ;  1843-1847. 

Saxton's  Reports  ;  New  Jersey  ;  1  vol. ;  1830-1832. 

Scammon's  Reports  ;  4  vols. ;  are  vols.  2-5  of  Illinois  Reports. 

Selden's  Reports  ;  New  York;  5  vols. ;  1851-1854. 

Sergeant  &  Rawle's  Reports  ;  Pennsylvania;  17  vols.;  1818-1829. 

Sinedes  &  Marshall's  Reports  ;  Mississippi ;  14  vols. ;  1843-1850. 

Smedes  ^  Marshall's  Chancery  Reports;  Mississippi;  1  vol.;  1840-1843. 

*Smith's  Reports  ;  Indiana;  1vol.;  1848-1849. 

Smith's  (E.  D.)  Reports  ;  New  York  ;  4  vols. ;  1850-1855. 

Sneed's  Reports ;  Tennessee;  5  vols. ;  1853-1858. 

Southartl's  Reports  ;  New  Jersey;  2  vols. ;  1816-1820. 

Soeers's  Reports ;  South  Carolina  ;  2  vols. ;  1843-1844. 

•  The  cases  contained  in  this  volume  are  regularly  reported  in  1  Indiana  Reports. 


OF  AMERICAN  REPORTS.  XXV 

Speers's  Equity  Reports  ;  South  Carolina  ;  1  vol. ;  1842-1844. 

Spencer's  Reports ;  New  Jersey  ;  1vol.;  1842-1845. 

Sprague's  Decisions  ;  U.  S.  Dist.  of  Massachusetts  ;  1  vol. ;  1841-1861. 

Stewart's  Reports  ;  Alabama;  3  vols. ;  1827-1831. 

Stewart  &  Porter's  Reports  ;  Alabama ;  5  vols. ;  1831-1834. 

Stockton's  Reports  ;  New  Jersey  ;  2  vols. ;  1852-1856. 

Story's  Reports;  U.  S.  1st  Circuit;  3  vols.  ;  1839-1845. 

Strobhart's  Reports  ;  South  Carolina  ;  5  vols. ;  1846-1850. 

Strobhart's  Equity  Reports;  South  Cai-olina  ;  4  vols.;  1846-1850. 

Sumner's  Reports  ;  U.  S.  1st  Circuit ;  3  vols. ;  1830-1839. 

Swan's  Reports ;  Tennessee;  2  vols. ;  1851-1853. 

Tappan's  Reports ;  Ohio;  1vol.;  1816-1819. 

Taylor's  Reports;    North  CaroUna;  2  vols. ;    vol.  1,  1798-1802;  vol.  2,  1816- 

1818. 
Tennessee  Reports;  2  vols. ;  1791-1815. 
Texas  Reports  ;  24  vols. ;  1846-1860. 
Thacher's  Criminal  Cases;  1  vol.;  1823-1843. 
Tyler's  Reports ;  Vermont;  2  vols. ;  1800-1803. 

Van  Ness's  Prize  Cases  ;  U.  S.  Dist.  of  New  York ;  1  vol. ;  1814. 
Vermont  Reports  ;  36  vols. ;  1826-1864. 
Virginia  Cases  ;  2  vols. ;  1789-1826. 

Walker's  Reports ;  Mississippi;  1  vol.;  1818-1832. 

Walker's  Chancery  Reports;  Michigan;  1  vol.;  1842-1845. 

Wallace's  Reports;  U.  S.  3d  Circuit;  1  vol.  ;  1801. 

Wallace's  Reports  ;  II.  S.  Supreme  Court ;  2  vols. ;  1863-1864. 

Wallace,  Jr.'s,  Reports  ;  U.  S.  3d  Circuit ;  2  vols. ;  1842-1853. 

Ware's  Reports  ;  U.  S.  Dist.  of  Maine  ;  1  vol.  ;  1822-1855. 

Washington's  Reports  ;  Virginia;  2  vols. ;  1790-1796. 

Washington's  Circuit  Court  Reports ;  U.  S.  3d  Circuit ;  4  vols.  ;  1803-1827. 

Watts's  Reports  ;  Pennsylvania  ;  10  vols.  ;  1832-1840. 

Watts  &  Sergeant's  Reports;  Pennsylvania  ;  9  vols. ;  1841-1844, 

Wendell's  Reports  ;  New  York  ;  26  vols. ;  1828-1841. 

Wharton's  Reports  ;  Pennsylvania;  6  vols. ;  1835-1841. 

Wheaton's  Reports  ;  U.  S.  Supreme  Court ;  12  vols. ;  1816-1827. 

Wheeler's  Criminal  Cases  ;  New  York  ;  3  vols. 

Wisconsin  Reports  ;  18  vols.  ;  1853-1864. 

Woodbury  &  Minot's  Reports;  U.  S.  1st  Circuit;  3  vols.  ;  1845-1847. 

Wright's  Reports  ;  Ohio  ;  1  vol ;  1831-1834. 

Wythe's  Chancery  Reports  ;  Virginia;  1vol.;  1788-1799. 

Yates's  Select  Cases;  New  York;  1  vol. ;  1811. 
Yeates's  Reports  ;  Pennsylvania;  4  vols. ;  1791-1808. 
Yerger's  Reports ;  Tennessee;  10  vols. ;  1832-1837. 

Zabriskie's  Reports  ;  New  Jersey  ;  4  vols.  ;  1847-1855. 


INDEX 

TO  THE  CASES   CITED. 


A. 

SECTIOa 

Abbott  V.  Warriner,  7  Blackford,  573 405 

Accessory  Transit  Co.  v.  McCerren,  13  Louisiana  Annual,  214         .  176,  732 

Ackroyd  v.  Ackroyd,  11  Abbott  Pract.  K,.  345  ;  20  Howard  Pract.  K.  93     .       23 

Adams  y.  Balch,  5  Maine,  188 304 

V.  Barrett,  2  New  Hamp.  374  ....      463,  497,  506,  541 

V.  Cordis,  8  Pick.  260 665 

V.  Filer,  7  Wisconsin,  306 706 

V.  Fox,  17  Vermont,  361 392 

V.  Newell,  8  Vermont,  190 246 

V.  Paige,  7  Pick.  542 277 

V.  Ptobinson,  1  Pick.  461 216,  528,  610 

Adlum  V.  Yard,  1  Rawle,  163  . 654 

Albee  u.  Webster,  16  New  Hamp.  862 199 

Aldrich  v.  Brooks,  5  Foster,  241 550 

Alexander  v.  Haden,  2  Missouri,  187 108 

w.  Hutchison,  9  Alabama,  825 174 

Alford  V.  Johnson,  9  Porter,  320      ' 133 

Allard  v.  De  Brot,  15  Louisiana,  253 698 

Allen  V.  Butler,  9  Vermont,  122 381 

t\  Carty,  19  Vermont,  65, 374 

V.  Doyle,  33  Maine,  420 310,  344,  372 

V.  Hall,  5  Metcalf,  263     .         .         .         .  536,  659,  660,  667,  685,  690 

V.  Mejrguire,  15  Mass.  490 536 

V.  Morgan,  1  Stewart,  9  .......         583,  659 

Alston  r.  Clay,  2  Hayward  (N.  C),  171 251,509 

American  Ex.  Bank  v.  Morris  C.  &  B.  Co.,  6  Hill  (N.  Y.),  362        .         221,  229 

Amos  V.  AUnutt,  2  Smedes  &  Marshall,  215 126 

Amoskeag  Man.  Co.  v.  Gibbs,  8  Foster,  316 588 

Anderson  v.  Doak,  10  Iredell,  295 245 

t;.  Scott,  2  Missouri,  15 207,238 

V.  Wanzer,  5  Howard  (MI.),  587 565 

V.  Young,  21  Penn.  State,  443 706 

Andrews  v.  Ludlow,  5  Pick.  28 481,  482,  483,  539 


'XXVm  INDEX  TO   THE   CASES   CITED. 

SECTIOS 

Anthony  v.  Comstock,  1  Rhode  Island,  454 345,  386 

Archer  v.  Claflin,  31  Illinois,  306 106,  406 

Argyle  v.  Dwinel,  29  Maine,  29 241 

Arledge  v.  White,  1  Head,  241   .         . 455,  543,  683 

Armor  V.  Cockburn,  4  Martin,  N.  s.  667 517 

Arnold  V.  Brown,  24  Pick.  89      .         . 222 

Arrington  v.  Screws,  9  Iredell,  42     .         .         .         .         .         .         .         .         247 

Ashby  V.  Watson,  9  Missouri,  236 637,  683 

Ashmun  v.  Williams,  8  Pick.  402 256 

Atcheson  v.  Smith,  3  B.  Monroe,  502 696,  697,  711 

Atkins  V.  Prescott,  10  New  Hamp.  120 561,  562,  570 

Atlantic  F.  &  M.  Ins.  Co.  v.  Wilson,  5  Rhode  Island,  479     .         .         .         658  e 
Atlas  Bank  v.  Nahant  Bank,  23  Pick.  488  .         .         .         .         .         .        231 

Austin  V.  Bodley,  4  Monroe,  434 '       .        5 

V.  Burgett,  10  Iowa,  302  ......         38,    227,    331 

V.  Burlington,  34  Vermont,  506 285,  344 

V.  Latham,  19  Louisiana,  88 94 

—  V.  Wade,  Pennington  2d  Ed.  727      .         .         ...         .         .         .     222 

Auter  V.  Steamboat  J.  Jacobs,  34  Mississippi,  269 105 

Averill  v.  Tucker,  2  Cranch,  C.  C.  544 512 

Ayer  v.  Jameson,  9  Vermont,  363 374 

Ayresu.  Husted,  15  Conn.  504 275 

B. 

Babb  V.  Elliott,  4  Harrington,  466 247 

Babcock  v.  Malbie,  7  Martin,  N.  s.  139 245 

Bach  V.  Goodi-ich,  9  Robinson  (La.),  391 '        .         224 

Bacon  v.  Leonard,  4  Pick.  277 237 

Badlam  v.  Tucker,  1  Pick.  389         ....        -.         245,  290,  371,  539 

Bagley  v.  White,  4  Pick.  395 271,  429 

Bailey  v.  Hall,  16  Maine,  408 307 

V.  Ross,  20  New  Hamp.  802 454  a,  536 

Baillio  V.  Poisset,  8  Martin,  N.  s.  337 223 

Bainbridge  v.  Alderson,  2  Browne,  51 62 

Baird  v.  Rice,  1  Call,  18 216 

V.  Williams,  19  Pick.  381  280 

Baker  u.  Fuller,  21  Pick.  318 351,353,372,380 

V.  Hunt,  1  Martin,  194 93 

V.  Moody,  1  Alabama,  315 525,  659 

V.  Warren,  6  Gray,  527      .         .         .         .         .         .         .      353,  357,  428 

Baldei-ston  v.  Manro,  2  Cranch,  C.  C.  623 527 

Baldwin  v.  Conger,  9  Smedes  &  Marshall,  516 205,416 

v.  Jackson,  12  Mass.  131 358,423,428 

r.  Leftwich,  12  Alabama,  838 229 

y.  Morrill,  8  Humphreys,  132 673 

Ball  V.  Claflin,  5  Pick.  303 262,  273,  285 

V.  Gardner,  21  Wendell,  270  152 


INDEX   TO   THE   CASES   CITED. 


XXIX 


Ball  V.  Gilbert,  12  Metcalf,  397 

Baltimore  v.  Root,  8  Maryland,  95  .         .         .         . 

&  Ohio  R.  R.  Co.  V.  Gallahue,  12  Grattan,  655 

-,  14  Grattan,  563 


469 


—  V.  McCullough,  12  Grattan,  595 

—  V.  Wheeler,  18  Maryland,  372 


Bancroft  v.  Sinclair,  12  Richardson,  617 

Bank  v.  Levy,  1  McMullan,  431  ... 

of  ALibama  v.  Berry,  2  Humphreys,  443 

V.  Fitzpatrick,  4  Humphreys,  311 

of  Augusta  V.  Conrey,  28  Mississippi,  667 

. V.  Jaudon,  9  Louisiana  Annual,  8 

of  Chester  v.  Ralston,  7  Penn.  State,  482 


of  N.  America  v.  M'Call,  3  Binney,  338 

of  Northern  Liberties  v.  Munfoi'd,  3  Grant,  232 

of" St.  Mary  v.  Morton,  12  Robinson  (La.)  409    . 

of  the   State  of  Missouri  v.  Bredow,  31  Missouri, 

of  Tennessee  v.  Dibrell,  3  Sneed,  379 

Banning  v.  Sibley,  3  Minnesota,  389    . 
Bannister  v.  Higginson,  15  Maine,  73 
Banta  v.  Revmolds,  3  B.  Monroe,  80    . 
Barber  v.  Robeson,  3  Green,  17 
Barkeloo  v.  Randall,  4  Blackford,  476 
Barker  v.  Esty,  19  Vermont,  131      . 

V.  Miller,  6  Johns.  195     . 

V.  Taber,  4  Mass.  81    . 

Barnard  v.  Graves,  16  Pick.  41   . 

V.  Moore,  8  Allen,  273 

—  V.  Sebre,  2  A.  K.  Marshall,  151 


Barnes  v.  Tre^t,  7  Mass.  271 

r.  Wayland,  14  Louisiana  Annual,  791 

V.  Webster,  16  Missouri,  258 

Barnet's  Case,  1  Dallas,  152 

Barnett  v.  Weaver,  2  Wharton,  418 

Barney  v.  Douglass,  19  Vermont,  98    . 

Barrett  v.  White,  3  New  Hamp.  210 

Barron  v.  Cobleigh,  11  New  Hamp.  557 

Barrow  v.  West,  23  Pick.  270 

Barry  v.  Bockover,  6  Abbott  Pract.  R.  374 

V.  Foyles,  1  Petei-s,  311 

Bartlett  v.  Wood,  32  Vermont,  372     . 

Barton  v.  Smith,  7  Iowa,  85     . 

Bassett  v.  Garthwaite,  22  Texas,  230 

Bates  V.  Jenkins,  1  Illinois  (Breese),  Appendix,  25 

V.  New  Orleans,  &c.  R.  R.  Co.,  4  Abbott  Pract.  R 

V.  Robinson,  8  Iowa,  310 

Baune  v.  Thomassin,  6  Martin,  n.  s.  563     . 


523 


72 


SECTIOS 

.     520 

516 

472,  478,  655 

.     551,  559 

553 

517 

204 

534 

107 

.     115,  124 

122,  134,416 

.     262,  273 

498 

.     529 

697 

.     607 

453  a 

246,  512,  516 

.     659 

219,  238 

117,  185 

.  33 

.     118 

547,  548 

290, 349 

652 

487,  514,  674 

539 

.     101 

499 

653, 655 

151, 327  a 

60,  62 

499 

588 

194 

391, 392 

706 

67 

318 

550 

711 

588 

405 

474,  551 

91 

10 


363, 


XXX 


INDEX   TO   THE   CASES  CITED 


Bausman  v.  Smith,  2  Indiana,  374   . 
Baxter  v.  Currier,  13  Vermont,  615    . 

V.  Rice,  21  Pick.  197   . 

V.  Vincent,  6  Vermont,  614     . 

Bayley  v.  Bryant,  24  Pick.  198 
Baylies  v.  Houghton,  15  Vermont,  626 
Beach  v.  Abbott,  4  Vermont,  605     . 

V.  Schmultz,  20  Illinois,  185 

V.  Viles,  2  Peters,  6  75. 

Beal  V.  Alexander,  1  Robinson  (La.),  27 


7  ;  s.  C.  7  Ibid 


Bean  v.  Barney,  10  Iowa,  498 

V.  Bean,  33  New  Hamp.  279 

V.  Hubbard,  4  Gushing,  85 

V.  Miss.  Union  Bank,  5  Robinson  (La.),  333 

V.  Parker,  17  Mass.  591  . 

Beardslee  v.  Morgan,  29  Missouri,  471 
Bebb  V.  Preston,  1  Iowa,  460  . 
Beck  V.  Brady,  7  Louisiana  Annual,  1 
Beckwith  v.  Baxter,  3  New  Hamp.  67 

V.  Sibley,  11  Pick.  482 

Beech  V.  Abbott,  6  Vermont,  586    . 
Beecher  v.  James,  3^11inois  (2  Scammon),  462 
Beekman  v.  Lansing,  3  Wendell,  446 
Belcher  v.  Grubb,  4  Harrington,  461 
Belknap  v.  Gibbens,  13  Metcalf,  471 
Bell  V.  Douglass,  1  Yerger,  397  , 

V.  Jones,  17  New  Hamp.  307  . 

'■  V.  Kendrick,  8  New  Hamp.  520  , 

Bellows  &  Peck's  Case,  3  Story,  428 
Benedict  v.  Bray,  2  California,  251 
Bennett  v.  Avant,  2  Sneed,  152 

u.  Brown,  31  Barbour,  158  ;  s.  C.  20  New  York,  99 

Benson  v.  Campbell,  6  Porter,  455  . 

Bentleyr.  Goodwin,  15  Abbott  Pract.  R.  82;  38  Barbour 

V.  Shrieve,  4  Maryland,  Ch'y  Decisions,  412 

Benton  v.  Lindell,  10  Missoui:i,  557     . 

V.  Roberts,  2  Louisiana  Annual,  243     . 

Bergh  V.  Jayne,  7  Martin,  N.  8.  609     . 
Berry  v.  Anderson,  2  Howard  (MI.),  649 

V.  Spear,  13  Maine,  187    .... 

Bethune  v.  Gibson,  2  Brevard,  501 
Bibb  V.  Smith,  1  Dana,  580  ...         . 

Bickerstaft"  r.  Patterson,  8  Porter,  245     . 
Bicknell  v.  Hill,  33  Maine,  297     . 

V.  Trickey,  34  Maine,  273  ... 

Bigelow  V.  Andress,  81  Illinois,  322     . 

• V.  Willson,  1  Pick.  485       ...         . 


349 


121a 


633 


SECTIOir 

21 

.  465 

208 

474,  707 

281 

.  581 

351,  353,  382 

.  199 

683 

321,  322,  323 

.  658  a 

487,  659 

195 

.  667 

336 

.  147 

659 

.  229 

499 

.   35 

437,  448 

.  144 

.   255  a 

.  624 

543 

.  252 

639 

.  646 

224,  435 
115,  150 

48,  108 

152,176,  307 

24 

.  225 

.   509a 

.  678 

321 

94, 106 

696 

.  219 

221,  255,  263 

.  599 

207 

.  359,373 

258 

225,  453 
222 


INDEX  TO  THE   CASES  CITED.  XXXI 

SECTION 

Biggs  V.  Blue,  5  McLean,  148 *     .        .        .        .90 

V.  Kouns,  7  Dana,  405 453 

Bingham  v.  Lamping,  26  Penn.  State,  340 482 

, -  V.  Rushing,  5  Alabama,  403 545 

. 1,.  Smith,  5  Alabama,  651      .         .         .         .         .         .         •      619,620 

Birdsong  v.  McLaren,  8  Georgia,  521 91,  137 

Bishop  V.  Holcombe,  10  Conn.  444 608 

u.  Warner,  19  Conn.  460 192 

r.  Young,  1 7  Wisconsin,  46 551 

Bissell  V.  Huntington,  2  New  Hamp.  142  ...  308,  365,  379,  395 

V.  Strong,  9  Pick.  562 465 

Black  V.  Paul,  10  Missouri,  103 614,  653 

V.  Zacharie,  3  Howard,  Sup.  Ct.  483 27 

Blackburn  v.  Davidson,  7  B.  Monroe,  101 550 

Blair  v.  Cantey,  2  Speers,  34 251,  506 

1).  Rhodes,  5  Alabama,  648 550,658  a 

BlaisdeUu.  Ladd,  UNewHamp.  129 275,453 

Blake  V.  Hatch,  25  Vermont,  555 -     .         •         256 

V.  Shaw,  7  Mass.  505 222,  306 

V.  Williams,  6  Pick.  286 597 

Blakley  u.  Bird,  12  Iowa,  601      .         .        .        .        •        •        •        •        -95 

Blanchard  v.  Cole,  8  Louisiana,  160 684 

17.  Coolidge,  22  Pick.  151 246 

.  V.  Groussett,  1  Louisiana  Annual,  96 25 

.  y.  Vargas,  18  Louisiana,  486 653 

Blaney  v.  Findley,  2  Blackford,  338        .  120 

Blatchley  v.  Adair,  5  Iowa,  545 339 

Eleven  u.  Freer,  10  California,  172 392 

Bliss,  In  re,  7  Hill  (N.  Y.),  187  .         .  • 84,  100 

V.  Stevens,  4  Vermont,  88 374 

Blodgett  V.  Gardiner,  45  Maine,  542 « •      664,  665 

Boardman  v.  Bickford,  2  Aikens,  345 51,  6C 

y.  Gushing,' 12  New  Hamp.  105 685 

V.  Roe,  13  Mass.  104 548,  645,  646 

Boggs  V.  BIndskoff,  23  Illinois,  66 55 

Bond  v.  Padelford,  13  Mass.  394 349,351,353,367,368 

V.  Patterson,  1  Blackford,  34 90 

y.  Ward,  7  Mass.  123 189,199,200,253  a 

Bonnel  v.  Dunn,  5  Dutcher,  435 244  a 

Bonner  v.  Brown,  10  Louisiana  Annual,  334  ..         .    112,  127,  144,  421 

Boon  V.  Maul,  Pennington,  2d  Ed.  631 732,  735 

Boone  v.  Savage,  14  Louisiana,  169 95 

Booth  V.  Rees,  26  Illinois,  45 185 

Born  V.  Staaden,  24  Illinois,  320 530,  579 

Bosbyshell  v.  Emanuel,  12  Smedes  &  Marshall,  63  ...  •  93,  102 
Boston,  C,  &  M.  R.  R.  Co.  v.  Gilmore,  37  New  Hamp.  410  .  .  252  a 
&  Maine  Railroads.  Oliver,  32  New  Hamp.  172           ...        685 


XXXU  INDEX  TO   THE   CASES   CITED. 

SECTIOIf 

Boston  Type  Co.  v.  Morfimer,  7  Pick.  166 685 

Bostwick  V.  Beach,  18  Alabama,  80 460,  658  6 

Bottom  V.  Clarke,  7  Gushing,  487 480 

Bourne  v.  Hooker,  11  B.  Monroe,  21 139,230 

Bowden  v.  Schatzell,  Bailey,  Eq.  R.  360 509 

Bowen  r.  Slocum,  17  Wisconsin,  181 103 

Bowman  v.  Stark,  6  New  Hamp.  459 219 

Boyd  V.  Bayless,  4  Humphreys,  386 543 

V.  Boyd,  2  Nott  &  M'Cord,  125 121 

V.  Buckingham,  10  Humphreys,  434 107,  381 

V.  Chesapeake  &  Ohio  Canal  Co.,  17  Maryland,  195    .         .         .        .     469 

V.  Martin,  10  Alabama,  700 163 

Boyes  v.  Coppinger,  1  Yeates,  277.         .         .         .         .■.         .         .     401 
Boyle  ?;.  Franklin  Fire  Ins.  Co.,  7  Watts  &  Sergeant,  76  .         .         .         549 

Brackett  v.  Blake,  7  Metcalf,  335 .667 

Bradbury  v.  Taylor,  8  Maine,  130 372 

Bradford  v.  Gillaspie,  8  Dana,  67 249 

V.  McLellan,  23  Maine,  302 253  a 

V.  Mills,  5  Rhode  Island,  393 477 

Bradley  v.  Arnold,  16  Vermont,  382 248 

V.  Obear,  U>  New  Hamp.  477         .         . 246 

V.  Richmond,  6  Vermont,  121 516 

Brainard  v.  Burton,  5  Vermont,  97 212 

u.  Bushnell,  11  Conn.  16 265 

Braley  v.  Clark,  22  Alabama,  361 340 

V.  French,  28  Vermont,  546 240,  290 

Branch  Bank  p.  Poe,  1  Alabama,  396 472,557,667,668 

of  State  Bank  v.  Morris,  13  Iowa,  136 148  a 

Brandon  Iron  Co.  v.  Gleason,  24  Vermont,  228 262 

Brannon  v.  Noble,  8  Georgia,  549 708 

Branson  v.  Shinn,  1  Green,  250 402 

Brashear  v.  West,  7  Peters,  608 251,  453 

Bray  v.  WaUingford,  20  Conn.  416 516 

V.  Wheeler,  29  Vermont,  514 594 

Braynard  v.  Burpee,  27  Vermont,  616 697 

Brazier  v.  Chappell,  2  Brevard,  107 528 

Breading  v.  Siegworth,  29  Pcnn.  State,  396 662,  707 

Brealsford  v.  Meade,  1  Yeates,  488  .......         561 

rn-etney  v.  Jones,  1  G.  Greene,  366 144 

i'.ridgc  v.  Wyman,  14  Mass.  190 357 

Bridges  V.  North,  22  Georgia,  52 583,  659 

V.  Perry,  14  Vermont,  262 292 

V.  Williams,  1  Martin,  N.  s.  98 94 

Brigden  i;.  Gill,  16  Mass.  522  .         .         .         ;         .  463,487,489,541 

Briggs  y.  Block,  18  Missouri,  281 487,514,525 

V.  French,  2  Simmer,  251 289 

V.  Gleason,  29  Vermont,  78 203 


INDEX  TO   THE   CASES   CITED.  XXxiii 

SECTION 

Brings  y.  Mason,  31  Vermont,  433 210  6,353 

y.  Strange,  1 7  Mass.  405 252  a 

u.  Taylor,  28  Vermont,  180 292,301 

V. ,  35  Vermont,  57 307 

Brinegar  v.  GrifBn,  2  Louisiana  Annual,  154 23 

Britt  V.  Bradshaw,  18  Arkansas,  530 653 

Britton  v.  Preston,  9  Vermont,  257 588 

Erode  v.  Firemen's  Ins.  Co.,  8  Robinson  (La.),  244 697 

Brook  V.  Smith,  1  Salkeld,  280 700 

Brooks  V.  Cook,  8  Mass.  246 494 

V.  Hlldreth,  22  Alabama,  469 526 

V.  Stone,  19  Howard  Pract.  R.  395 225 

Brotherton  v.  Anderson,  6  Missouri,  388  ......         636 

'■ —  V.  Thomson,  11  Missouri,  94 334 

Brower  ?;.  Smith,  17  Wisconsin,  410 244  c 

Brown,  Matter  of,  21  Wendell,  316 100 

V.  Atwell,  31  Maine,  351 381 

V.  Cook,  9  Johns.  361 .349 

V.  Crockett,  22  Maine,  537 396 

V.  Davis,  9  New  Hamp.  76 204,  210 

V. ,  18  Vermont,  211 ?        .         .         463 

V.  Dudley,  33  New  Hamp.  511 707,  710 

u.  Foster,  4  Cushing,  214 525 

r.  Harris,  2  G.  Greene,  505     . 415 

V.  Hinchman,  9  Johns.  75 99 

V.  jMcCluskey,  26  Georgia,  577 84,  108 

r.  JMnssey,  3  Stewart,  226 399 

0.  Richai'dson,  1  Martin,  N.  s.  202    .         .         .         .         .         .         .81 

V.  Richmond,  27  Vermont,  583 304 

V.  Seott,  7  Vermont,  57 254 

v.  Silsby,  10  New  Hamp.  521 659,  660,  664 

V.  Slate,  7  Humphreys,  112 583,659 

y.  Somerville,  8  Maryland,  444 700,708,711 

V.  Warren,  43  New  Hamp.  492 683,  684 

V.  Whiteford,  4  Richardson,  327 140 

V.  Williams,  31  Maine,  403 221 

Brownell  v.  Carnley,  3  Duer,  9 245 

y.  Manchester,  1  Pick.  232  .         .         .         .         290,349,367,371,427 

Bruce  y.  Coleman,  1  Handy,  515     ....         154,156,159,164,166 

r.  Cook,  6  Gill  &  Johnson,  345 84,87 

V.  Holden,  21  Pick.  187 210,  271,  423 

V.  Pettengill,  12  New  Hamp.  341 208,  346,  363 

Brumgard  v.  Anderson,  16  Louisiana,  341 408 

Brundred  v.  Del  Hoyo,  SpencerJ  328 65 

Bryan  v.  Dunseth,  1  Martin,  N.  s.  412 67 

V.  Lashley,  13  Smedes  &  Marshall,  284 205,  453 

Buchanan  v.  Alexander,  4  Howard,  Sup.  Ct.  20 512 


XXxiv  INDEX   TO   THE   CASES   CITED. 

SECTION 

Buckley  v.  Lowry,  2  Michigan,  418 84 

Buckman  v.  Buckman,  4  New  Hamp.  319 275 

Buckmaster  v.  Smith,  22  Vermont,  203 246 

Buddington  v.  Stewart,  14  Conn.  404 248 

BufSngton  V.  Gerrish,  15  Mass.  156 246 

Buffum  V.  Seaver,  16  New  Hamp.  160 224,  435 

Buford  V.  Welborn,  6  Alabama,  818 650 

Bulfincli  V.  Winchenbach,  3  Allen,  161 568 

Bulkier  V.  Eckert,  3  Penn.  State,  368 493,  512 

Bullard  I!.  Hicks,  17  Vermont,  198 660 

r.  Randall,  1  Gray,  605 611 

Bullitt  V.  Winston,  1  Munford,  269 216 

Bunker  y.  Gilmore,  40  Maine,  88 607,630,   717 

Bunn  V.  Pritchard,  6  Iowa,  56 113 

Burgess  V.  Clark,  3  Indiana,  250 52 

V.  Stitt,  12  Howard,  Pract.  R.  401 92 

Burke  v.  Whitcomb,  13  Vermont,  421 551,  578 

Burkhardt  v.  McClellan,  15  Abbott  Pract.  R.  243,  note   .        .         221,  236,  263 

Burlingame  v.  Bell,  16  Mass.  318 251,  267,  270,  453 

Burlock  V.  Taylor,  16  Pick.  335 .*        .         605 

Burnap  v.  Campbell,  6  Gray,  241 711 

Burnham  v.  Folsom,  5  New  Hamp.  566 .  618 

V.  Fond  du  Lac,  15  Wisconsin,  193 516 

i;.  Hopkinson,  17  New  Hamp.  259 457 

Bumside  v.  McKinley,  12  Louisiana  Annual,  505         •         .         .         .     517,  526 

Burrell  v.  Letson,  1  Strobhart,  239 251,  482,  506 

V.  ,  2  Speers,  378 625 

Burroughs  v.  Wright,  16  Vermont,  619    .......         267 

Burrows  u.  Lehndorff,  8  Iowa,  96 173,730  a 

V.  Miller,  4  Howard  Pract.  R.  349 61 

V.  Stoddard,  3  Conn.  160       .         .  367 

V.  ,  3  Conn.  431 282 

Bui-sley  v.  Hamilton,  15  Pick.  40 392 

Burt  y.  Parish,  9  Alabama,  211 112,144 

V.  Perkins,  9  Gray,  317 389 

Burton  V.  District  Township,  11  Iowa,  166       .....        658  c,  713 

V.  Wilkinson,  18  Vermont,  186 186,  200 

Bushel  I'.  Commonwealth  Ins.  Co.,  15  Sergeant  &  Rawle,  173  .         .  79 

Buswell  y.  Davis,  10  New  Hamp.  413  .......     289 

Butler  V.  Borders,  6  Blackford,  160 196 

Butterfielil  v.  Baker,  5  Pick.  522 246 

• V.  Clemence,  10  Cushing,  269 426 

y.  Converse,  10  Cushing,  317 384 

Byars  u.  Griflin,  31  Mississippi,  603 609 

Byrd  V.  Hopkins,  8  Smedes  &  Marshall,  441 420 


INDEX  TO  THE   CASES   CITED. 


xxxv 


c. 


Cadwalader  v.  Hartley,  17  Indiana,  520 
Cadwell  V.  Colgate,  7  Barbour,  253 
Cady  V.  Comey,  10  Metcalf,  459  . 
Cahill  V.  Bigelow,  18  Pick.  369 
Gaboon  v.  Ellis,  18  Vermont,  500 
Caignett  v.  Gilbaud,  2  Yeates,  35    . 
Cain  V.  INIather,  3  Porter,  22-4      . 
Caldwell  v.  Arnold,  8  Minnesota,  265 
V.  Townsend,  5  Martin,  N.  S.  307 


Calboim  V.  Cozzens,  3  Alabama,  21 

V.  Ware,  34  Mississippi,  146 

Calkins  v.  Lockwood,  17  Conn.  154 
Callaban  v.  Hallowell,  2  Bay,  8 
Callender  v.  Duncan,  2  Bailey,  454 

•  V.  Furbisb,  46  Maine,  226    . 

Camberford  v.  Hall,  3  McCord,  345 
Cameron  v.  Stollenwerck,  <o  Alabama,  704  . 
Cammack  v.  Floyd,  10  Louisiana  Annual,  351 
Cammann  v.  Tompkins,  1  Code  Reports,  12 
Camp  V.  Chamberlain,  5  Denio,  198 

V.  Clark,  14  Vermont,  387 

Campbell  v.  Chamberlain,  10  Iowa,  337 

V.  Johnson,  11  Mass.  184 

V.  Morris,  3  Harris  &  M'Henry,  535 

V.  Ruger,  1  Cowen,  215 

Canada  v.  Southwick,  16  Pick.  556 
Candee  v.  Webster,  9  Ohio  State,  452 
Canfield  v.  M'Laughlin,  10  Martin,  48     . 
Cannon  v.  Logan,  5  Porter,  77    . 

V.  McManus,  1 7  Missouri,  345     . 

Caperton  v.  M'Corkle,  5  Grattan,  177 
Cargill  V.  W^ebb,  10  New  Hamp.  199 
Garland  v.  Cunningham,  37  Penn.  State,  228 
Garleton  v.  Washington  Ins.  Co.,  35  New  Hamp 
Carlton  v.  Davis,  8  Allen,  94       .         .         . 
Garr  v.  Goopwood,  24  Mississippi,  256 

17.  Farley,  12  Maine,  328     . 

V.  Waugh,  28  Illinois,  418 

Gamngtofl  v.  Didier,  8  Grattan,  260  . 

V.  Smith,  8  Pick.  419      .         .      '  . 

Carrique  v.  Sidebottom,  3  Metcalf,  297 
Carroll  v.  Finley,  26  Barbour,  61     . 

V.  McDonogh,  10  Martin,  609 

Carson  v.  Allen,  2  Chandler,  123      . 

V.  Carson,  6  Allen,  397    , 

Carter  v.  Glianipion,  8  Conn.  549     . 


62 


116, 


143, 


SECTION 

.     579,588 

84,  106,  319 

.     501 

595,  612 

.     655 

566 

.       36 

196 

.     460 

.  11,416 

.     437 

222 

,     '263,472 

140 

.      539, 642 

262,  273,  697 

.     707 

526 

.     400 

.     255  a 

.     599 

175 

.     249 

403 

.     263 

294,  389 

.     665 

337 

.     102 

406,  409 

.     412 

379,  380 

14 

.     5,  449 

.     199 

421 

352,  388 

604 

.       81 

360,  431 

635,  650 

655 

.     701 

588 

.     -ZAG 

239 


XXXVl 


INDEX   TO   THE   CASES   CITED 


114 


Carter  v.  Gregory,  8  Pick.  165    . 

Carver  v.  Bralntree  Man.  Co.,  2  Story,  432 

Cary  v.  Gregg,  3  Stewart,  433     .... 

Case  V.  Moore,  21  Alabama,  758 

Catlin  V.  Lowrey,  1  D.  Chipman,  396 

Cayce  v.  Ragsdale,  17  Missouri,  32  . 

Central  Bank  v.  Prentice,  18  Pick.  396 

Plank  Road  Co.  v.  Sammons,  27  Alabama, 

ChaJbourne  v.  Sumner,  16  New  Hamp.  129 
Chaine  v.  Wilson,  16  Howard  Pract.  R.  552 
Chamberlain  v.  Beller,  18  New  York,  115  . 
Chambers  v.  McKee,  1  Hill  (S.  C),  229 

■ V.  Sloan,  19  Georgia,  84 

Chandler  v.  Thurston,  10  Pick.  205 
Chapman  v.  Smith,  16  Howard  Sup.  Ct. 

V.  Williams,  13  Gray,  416 

Chase  v.  Elkins,  2  Vermont,  290 

V.  Foster,  9  Iowa,  429    . 

V.  Haughton,  16  Vermont,  594   . 

V.  Manhardt,  1  Bland,  333     . 

Chatzel  V.  Bolton,  3  M'Cord,  33  . 

Cheadle  v.  Riddle,  6  Arkansas  (1  English),  480 

Cheairs  v.  Slaten,  3  Humphreys,  101  . 

Chealy  v.  Brewer,  7  Mass,  259 

Cheatham  v.  Carrington,  14  Louisiana  Annual,  696 

V.  Trotter,  Peck,  1 98       . 

Cheddick  v.  Marsh,  1  Zabriskie,  463    . 
Chenault  v.  Chapron,  5  Missouri,  438 
Cheongwo  v.  Jones,  3  Washington,  C.  C.  359 
Childress  v.  DIckins,  8  Yerger,  113 

V.  Fowler,  9  Arkansas  (4  English),  159 

Childs  V.  Barrows,  9  Metcalf,  413     . 

V.  Digby,  24  Penn.  State,  23 

V.  Ham,  23  Maine,  74    . 


Chipman,  Matter  of,  1  Wendell,  66     . 
Chittenden  v.  Hobbs,  9  Iowa,  417    . 
Chouteau  v.  Sherman,  11  Missouri,  385 
Christmas  v.  Biddle,  13  Penn.  State,  223 
Church  V.  Knox,  2  Conn.  514 
Clmrchill  v.  Abraham,  22  Illinois,  455 

V.  Fulliam,  8  Iowa,  45 

Cilley  V.  Jenness,  2  New  Hamp.  87 

City  Bank  v.  Merrit,  1  Green,  131 

Claflin  V.  Iowa  City,,  12  Iowa,  284    . 

Chinton  V.  Laird,  12  Smedes  &  Marshall,  568 

Clapp  V.  Bell,  4  Mass.  99 

V.  Hancock  Bank,  1  Allen,  391 


380 


204, 


210, 


SECTION 

278,  279 

12 

.     224 

460, 658  a 

.     395 

409 

.     539 

.      465  a 

256,  271,423 

67 

189,  253  a 

697 

.     107 

246 

.     294 

465 

.     246 

.      658  a 

.     588 

665 

.     570 

92 

.     706 

493,  512 

.       81 

652 

.       33 

409 

700,  708 

556,  652 

312,  318 

214,  220 

.     484 

209,  296 

50,400 

38 

.       72 

479 

.     569 

154,  166,  174 

.     136 

294,  300 

.     402 

470 

.      132,  420 

228,415 

.     464-,  557 


INDEX  TO  THE   CASES   CITED, 


Clapp  V.  Rogers,  38  New  Hamp.  435 
V.  Thomas,  5  Allen,  158    . 


Clark,  Matter  of,  3  Denio,  167 

I'.  Arnold,  9  Dana,  305 

V.  Averill,  31  Vermont,  502  . 

V.  Boggs,  6  Alabama,  809 

V.  Brewer,  6  Gray,  320  . 

V.  Brown,  14  Mass.  271      . 

V.  Bryan,  16  Maryland,  171  . 

V.  Clougli,  3  Maine,  357    . 

V.  Foxcroft,  7  Maine,  348 

V.  Gaylord,  24  Conn.  484  . 

V.  Gibson,  12  New  Hamp.  386 

V.  Great  Barrington,  11  Pick.  260 

V.  King,  2  Mass.  524      . 

V.  Morse,  16  Louisiana,  575 

V. ,  10  New  Hamp.  236 

V.  Roberts,  1  Illinois  (Breese),  222 

V.  Viles,  32  Maine,  32    . 

V.  Ward,  1 2  Grattan,  440 

V.  Wilson,  3  Washington,  C  C.  560 

Clarke  v.  Farnum,  7  Rhode  Island,  1 74 
V.  Gary,  11  Alabama,  98 


Clay  V.  Neilson,  5  Randolph,  596 

V.  Scott,  7  B.  Monroe,  554 

Clement  v.  Clement,  1 9  New  Hamp.  460     . 
Clements  v.  Cassilly,  4  Louisiana  Annual,  380 
Cleveland  v.  Clap,  5  Mass.  201    . 
Cleverly  v.  Brackett,  8  Mass.  150     . 
Clodfelter  v.  Cox,  1  Sneed,  330  . 
Cloud  V.  Smith,  1  Texas,  611  . 
Clymer  v.  Willis,  3  California,  363       . 
Coates  V.  Roberts,  4  Rawle,  100       . 
Cobb  V.  Bishop,  27  Vermont,  624 

V.  Force,  6  Alabama,  468 

V.  O'Neal,  1  Howard  (Mi.),  581  . 

Coburn  J7.  Ansart,  3  Mass.  319  ... 

Cockey  v.  Leister,  12  Maryland,  124  . 

V.  Milne's  Lessee,  16  Maryland,  200     . 

Cockrell  v.  McGraw,  33  Alabama,  526 

Coddington  v.  Gilbert,  5  Duer,  72 ;  2  Abbott  Pract.  R. 

York,  489 

Coe  y.  Wilson,  46  Maine,  314 

Cogswell  V.  Mason,  9  New  Hamp.  48       .         .         . 
Cohen  V.  Manco,  28  Georgia,  27  .... 

V.  St.  Louis  Perpetual  Ins.  Co.,  11  Missouri,  374 

Colby  V.  Coates,  6  Gushing,  558  .... 


242 


17  New 


XXXVll 

SECTION 

453 

195,  244  a 

445,  448 

.       46 

479 

.     510 

.     462  a 

.     464 

317,  322,  448 

.     347 

283,  288 

.     389 

520 

*  .      512,  703 

550,  575 

.       94 

369 

.       84 

481 

.       64 

32,  204,  416 

.     457 

204 

.      207,  238 

263 

.     551 

336 

.      634, 656 

35 

.      607,  622 

399 

.      251,  506 

706,  714,  722 

.     545 

106 

.     418 

494,  515 

.509  a 

221 

416  a 

.      244  a 

.     246 

242 

84,  91 

665 

494,  511 


XXXVIU 


INDEX   TO   THE   CASES   CITED. 


Colcord  V.  Doggett,  18  Missouri,  557 
Cole  V.  Parker,  7  Iowa,  167 

V.  Wooster,  2  Conn.  203  . 

Collins  V.  Brigbam,  11  New  Hamp.  420 

V.  Dufiy,  7  Louisiana  Annual,  39 

V.  Mitchell,  3  Florida,  4  . 

•  V.  Nichols,  7  Indiana,  447     . 

V.  Perkins,  31  Vermont,  624    . 

V.  Smith,  16  Vermont,  9       . 

Colt  V.  Ives,  31  Conn.  25 

Colvin  V.  Rich,  3  Porter,  1 75 

Colwell  V.  Bank  of  Steubenville,  2  Ohio,  229  ;  2d  Edition 

V.  Richards,  9  Gray,  374      . 

Commercial  Bank  v.  Neally,  39  Maine,  402 

V.  UUman,  10  Smedes  &  Marshall,  411 

Commissioners  v.  Fox,  Morris,  48        .         .         .         . 
Commonwealth  v.  Manley,  12  Pick.  173  . 

V.  Morse,  14  Mass.  217         . 

Comstock  V.  Farnum,  2  Mass.  96      . 


V.  Paie,  18  Louisiana,  479 


Conant  v.  Bicknell,  1  D.  Chipman,  50 

Congdon  v.  Cooper,  15  Mass.  10 

Couklin  V.  Harris,  5  Alabama,  213 

Conn  V.  Caldwell,  6  Illinois  (1  Oilman),  531 

Connoley  v.  Cheeseborough,  21  Alabama,  166 

Conrad  v.  M'Oee,  9  Yerger,  428 

Cook  V.  Boyd,  16  B.  Monroe,  556     . 

V.  Dillow,  9  Iowa,  407 

V.  Field,  3  Alabama,  53  . 

V.  Walthall,  20  Alabama,  334      . 

Cooper  V.  McClun,  16  Illinois,  435   . 

V.  Mowry,  16  Mass.  5       .         .        . 

V.  Peck,  22  Alabama,  406    . 

V.  Reeves,  13  Indiana,  53 

Copeland  y.  Weld,  8  Maine,  411      . 
Corbyn  v.  BoUman,  4  Watts  &  Sergeant,  342 
Corey  v.  Powers,  18  Vermont,  588  . 
Cornwell  v.  Oould,  4  Pick.  444    . 

V.  Ilungate,  1  Indiana,  156 

Coston  V.  Paige,  9  Ohio  State,  397      . 
Cotton  I'.  Huoy,  4  Alabama,  56        .         .         , 
Cottrell  V.  Varnum,  5  Alabama,  229    . 
Courier  v.  Cleghorn,  8  G.  Greene,  523     . 
Courtney  v.  Carr,  6  Iowa,  238 
Cousins  V.  Brashear,  1  Blackford,  85 
Covert  V.  Nelson,  8  Blackford,  265     ' . 
Cowles  V.  Coe,  21  Conn.  220    . 


SECTIOK 

686,  589 
.  188 
262,  508 
.  517 
433 
.  342 
406 
194  a,  203 
290,  374 
.  528 
)79,  607,  630,  717 
.  446 
353,  374 
.  498 
102,  107 
.  588 
247 
349,  367 
550,  575,  652 
*.  648 
251,  506 
.  298 
66,  144,  148 
.  423 
583,  659 
5,  90,  102 
314 
.  490 
708,  710,  716,  722 
541,  545 
706 
.  362 
340 
.  416 
481 
510,  642 
464 
.  35 
697,  715 
.  408 
187 
.  557 
38 
187  a,  235 
119 
.  575,  708 
523 


54,  84, 


INDEX   TO   THE   CASES   CITED. 


XXXIX 


Cowperthwaite  v.  Sheffield,  1  Sandford,  Sup.  Ct.  416  ;  s.  C,  3 

Cox  u.  Milner,  23  Illinois,  476 

V.  Robinson,  2  Robinson  (La.),  313 

Crabb  v.  Jones,  2  Miles,  130    . 
Crane  v.  Freese,  1  Harrison,  305 

V.  Lewis,  4  Louisiana  Annual,  320 

Crawford  v.  Clute,  7  Alabama,  157 

V.  Foster,  6  Georgia,  202 

V.  Slade,  9  Alabama,  887     . 

Crayton  v.  Clark,  11  Alabama,  787 
Creagh  v.  Delane,  1  Nott  &  M'Cord,  189      . 
Crisman  v.  Matthews,  2  Illinois  (1  Soammon),  148 

V.  Swisher,  4  Dutcher,  149     . 

Crocker  y.  Pierce,  31  Maine,  177     ... 

V.  Radcllffe,  3  Brevard,  23     .         .         . 

■—  V. ,  1  Constitutional  Court  R.  (Treadway 

Crosby  v.  AUyn,  5  Maine,  453         .... 

V.  Hotherington,  4  Manning  &  Granger,  933   . 

Cross  V.  Brown,  41  New  Hamp.  283 

V.  Haldeman,  15  Arkansas,  200 

V.  Richardson,  2  Martin,  N.  8.  323 

Crossman  v.  Crossman,  21  Pick.  21     . 

Crouch  V.  Crouch,  9  Iowa,  269 

Crowninshield  v.  Strobel,  2  Brevard,  80     .         .         . 

Croxall  V.  Hutchings,  7  Halsted,  84         .         .         . 

Cruyt  V.  Phillips,  16  Howard  Pract.  R.  120 

Culver  V.  Parish,  21  Conn.  408        ...         . 

Cummins  v.  Gray,  5  Stewart  &  Porter,  397 

Curie  V.  St.  Louis  Perpetual  Ins.  Co.,  12  Missouri,  578 

Curling  v.  Hyde,  10  IMissouri,  374       . 

Curtis  V.  Norris,  8  Pick.  280  .... 

V.  Settle,  7  ISIissouri,  452 

Cushman  v.  Haynes,  20  Pick.  132    . 

Cutler  V.  Baker,  2  Day,  498 

Cutter  V.  Perkins,  47  Maine,  557     . 
Cutter  V.  Baker,  2  Louisiana  Annual,  572   . 


SECTION 

Comstock,  243      611 

234 

158,  170,  175,  738 

620,  624 

.     251,  505,  506 

19 

.     701,  705 

336 

.     701,  705 

76,607,  608,  630,  717 

.     Ill 

339 

.     205 

222,  223,  234 

221,  222,  255,  263 

),  83      .         .         433 

236,  237,  241 

■.     473 

.  370,  373,  385,  395 

.      576 

.     19,  96 

643,  651, 655 

113 

221,  231,  255,  263 

.   57,  108 

.      319 

589 

.      333 

614 

.      497 

517,533 

.     107 

525 

.     711 

552,  630  a 

.     517 


D. 


Daily  v.  Jordan,  2  Cushing,  390       . 

Daley  v.  Cunningham,  3  Louisiana  Annual,  55    . 

Dame  v.  Fales,  3  New  Hamp.  70     .         .         . 

Dandridge  v.  Stevens,  12  Smedes  &  Marshall,  723 

Danforth  v.  Carter,  1  Iowa,  546 

V. ,  4  Iowa,  230  . 


V.  Penny,  3  Metcalf,  564 
V.  Rupert,  11  Iowa,  547 


Daniel  i'.  Rawlings,  6  Humphreys,  403 


667 

509,  626 

184 

.  107 

.  30,  136 

.  411 

477 

.  411 

689 


xl  INDEX  TO  THE   CASES   CITED. 

SECTION 

Daniels  v.  Willard,  16  Pick.  36 605 

Danielson  v.  Andrews,  1  Pick.  156 284 

Davenport  V.  Lacon,  17  Conn.  278 224 

V.  Swan,  9  Humphreys,  186 479,  667 

u.  Tilton,  lOMetcalf,  320  .         .         .         .         .         .      224,433,435 

Davidson  v.  Clayland,  1  Harris  &  Johnson,  546       ...         .  251,  508 

V.  Cowan,  1  Devereux,  304 219 

u.  Donovan,  4  Cranch,  C.  C.  578 470 

u.  Owens,  5  Minnesota,  69 34  a 

Davis  V.  Commonwealth,  13  Grattan,  139         .' 162 

?;.  Davis,  2Cushing,  111 263,498 

V. ,  49  Maine,  282 669 

V.  Drew,  6  New  Hamp.  899 502 

V.  Edwards,  Hardin,  342 101,  108 

— V.  Eppinger,  18  California',  378 275 

1;.  Garret,  3  Iredell,  459  .         ....         .         .*         .         .         244 

V.  Ham,  3  Mass.  83 551,  552 

V.  Knapp,  8  Missouri,  657       .         .         .         .         .         .         .         .         653 

V.  Marshall,  14  Barbour,  96 115 

V.  Marston,  5  Mass.  199 490 

V.  Miller,  1  Vermont,  9 344,  353,  872,  373 

u.  Oakford,  11  Louisiana  Annual,  379 650 

V.  Pawlette,  3  Wisconsin,  300 583,  588,  659 

V.  Taylor,  4  Martin,  N.  s.  134 527 

Dawkins  v.  Gault,  5  Pvichardson,  151 654 

Dawson  v.  Holcombe,  1  Ohio,  135 251,  505 

V.  Moons,  4  Munford,  535 216 

Day  V.  Bennett,  3  Harrison,  287 402 

V.  Newark  I.  R.  Man.  Co.,  1  Blatchford,  628 80 

V.  Paupierre,  7  Dowling  &  Lowndes,  12  ;  s.  C.  13  Adolphus  &  Ellis, 

N.  s.  802 473 

Deacon  v.  Oliver,  14  Howard,  Sup.  Ct.  610 479,  481 

Dean  v.  Bailey,  12  Vermont,  142 203,  311 

Deaver  v.  Keith,  5  L-edell,  374 548 

Deblanc  v.  Webb,  5  Louisiana,  82 636 

Debuys  v.  Yerbey,  1  Martin,  N.  s.  380 81 

Deck(;r  v.  Bryant,  7  Barbour,  182 100 

Decoster  v.  Livermore,  4  Mass.  101 511 

Delano  v.  Kennedy,  5  Arkansas,  457        .......         318 

Deloach  v.  Jones,  18  Louisiana,  447     .         .         .         .         .         .         .         •     245 

Denegre  v.  Milne,  10  Louisiana  Annual,  324 27 

Dennie  v.  Hart,  2  Pick.  204 674 

Dennis  v.  Twichell,  10  iMetcalf,  180 609 

Dennison  v.  Nigh,  2  Watts,  90 247 

Dennistoun  v.  New  York  C.  &  S.  F.  Co.,  6  Louisiana  Annual,  782  .         251 

Denson  v.  Sledge,  2  Devereux,  136      ........     188 

Denton  v.  Livingston,  9  Johns.  96    .         .         .         .         .         .         .         .         206 


IXDEX  TO  THE   CASES   CITED. 


xli 


Denny  v.  Ward,  3  Pick.  199 

V.  Warren,  16  Mass.  420 

V.  Willard,  11  Pick.  519  , 


Desha  V.  Baker,  3  Arkansas,  509       .... 
Despatch  Line  v.  Bellamy  Man.  Co.,  12  New  Hamp.  205 
Deupree  v.  Eisenach,  9  Georgia,  598 
Devall  V.  Taylor,  Cheves,  5 
Devoll  V.  Brownell,  5  Pick.  448 
Devries  v.  Buchanan,  10  Maryland,  210 
Dew  V.  Bank  of  Alabama,  9  Alabama,  323 
Dewar  v.  Spence,  2  Wharton,  211 
Dewey  v.  Field,  4  Metcalf,  381 
Dewing  v.  Wentworth,  11  Gushing,  499 
De  Wolf  V.  Babbett,  4  Mason,  289 
V.  Dearborn,  4  Pick.  466 


SECTION 

287 

256,  276 
204,  222,  294,  357,  369,  389 
205,  224,  696,  712 
.  453,  485,  548 
106 
.  101 


158 


Dezell  V.  Odell,  3  *EI11  (N.  Y.),  215 

Dick  V.  Bailey,  2  Louisiana  An.nual,  974 

Dickerson  v  Sii^ms,  Coxe,  199 

Dickey  v.  Fox,  24  Missouri,  217 

Dickinson  v.  Bfenham,  10  Abbott  Pract.  E.  390  ;  12  Ibid, 

Pract.  R.  410 

• V.  McGraw,  4  Randolph,  158 

V.  Strong,  4  Pick.  57 

Dickison  v.  Palmer,  2  Richardson,  Eq.  R.  407      . 
Dickson  I'.  Morgan,  7  Louisiana  Annual,  490  . 
Dider  v.  Courtney,  7  I^lissouri,  500       .... 
Didier  v.  Galloway,  3  Arkansas,  501 
Dillenback  v.  Jerome,  7  Cowen,  294     .... 
Dillon  V.  Watkins,  2  Speers,  445      .... 
DIrlam  v.  Wenger,  14  Missouri,  548    .... 
Divine  v.  Harvie,  7  Monroe,  439      .... 

Dix  V.  Cobb,  4  Mass.  508 

Dodd  V.  Brott,  1  Minnesota,  270      . 

Doggett  V.  St.  Louis  M.  &  F.  Ins.  Co.,  19  Missouri,  201 

Dole  u.  Boutwell,  1  Allen,  286         .... 

Dolson  V.  Brown,  13  Louisiana  Annual,  551 

Donham  v.  Wild,  19  Pick.  520  .... 

Donnell  v.  Jones,  13  Alabama,  490 

Dore  V.  Dawson,  6  Alabama,  712 

Dorman  v.  Kane,  5  Allen,  38 

Dorr  V.  Clarke,  7  Michigan,  310 

V.  Kershaw,  18  Louisiana,  57 

Dorsey  v.  Pierce,  5  Howard  (^li.),  173    . 

Dove  V.  Martin,  23  Mississippi,  588      ..... 

Downer  v.  Brackett,  21  Vermont,  599  ;  5  Law  Reporter,  392 

V.  Curtis,  25  Vermont,  650     ..... 

V.  Tophff,  19  Vermont,  399         .         .         •         . 


154,  157 


174 


175, 


640 

.     654 

696 

.     214 

294,  389,  392 

.     511 

246 

.     245 

379,  392 

.     427 

33 

.     586, 590 
19  Howard 

75  a 

166 

465,  481 

.     508 

628 

.     409 

115 

349,  367 

132 

.     715 

512 

603,  608 

608 

.     663 

710 

.     525 

361, 362 

726,  738,  743 

575 

.     294 

339 

321,  322,  323 

216 

133,  134 

224,  435 

^.  552 

549 


xlii 


INDEX   TO   THE   CASES   CITED. 


Downing  v.  Phillips,  4  Yeates,  274 
Drake  v.  Hager,  10  Iowa,  556 
Drane  v.  McGavock,  7  Humplireys,  132 
Drew  V.  Livermore,  40  Maine,  266  . 

V.  Dequindre,  2  Douglass,  93 

DriscoU  V.  Hoyt,  11  Gray,  404 
Drown  v.  Smith,  3  New  Ilamp.  299 
Drummond  v.  Stewart,  8  Iowa,  341 
Dubois  V.  Dubois,  6  Cowen,  494   . 
Dudley  v.  Goodrich,  16  Howard  Pract. 
Duncan  v.  Ware,  5  Stewart  &  Porter, 
Dunklee  v.  Fales,  5  New  Hamp.  527 
Dunn  V.  Crocker,  22  Indiana,  324 
V.  Myres,  3  Yerger,  414 


R  189 
119 


Dunnegan  v.  Byers,  17  Arkansas,  492 

Dunning  v..  Humphrey,  24  Wendell,  31 

Durant  v.  Johnson,  19  Pick.  544 

Dwight  V.  Bank  of  Michigan,  10  Metcalf,  58 

Dwinel  v.  Stone,  30  Maine,  384  . 

Dyer  v.  Flint,  21  lUinois,  80    . 

V.  McHenry,  13  Iowa,  527 


SKCTIOW 

.     416 

103 

.     506,  509 

381,  392 

108,  111,441 

461,  659 

.     394 

.      173  a 

.     251,  505 

.     316  a 

.     711 

256,  357,  428 

.     319 

405 

.     557 

159,  176,  177 

.     263 

526 

.     552 

106 

.     687 


E. 


Ealer  v.  McAllister,  14  Louisiana  Annual,  821 
Earl  V.  Spooner,  3  Denio,  246     . 
Eastman  v.  Avery,  23  Maine,  248 
V.  Eveleth,  4  Metcalf,  137     . 


Eaton  V.  Badger,  33  New  Hamp.  228 
Eddy  V.  Heath's  Garnishees,  31  Missouri,  141 
Edgerly  v.  Sanborn,  6  New  Hamp.  397   . 
Edrington  v.  AUsbrooks,  21  Texas,  186 
Edson  V.  Sprout,  33  Vermont,  77     . 
V.  Trask,  22  Vermont,  18 


Edwards  v.  Delaplaine,  2  Harrington,  322 

V.  Flatboat  Blacksmith,  33  Mississippi,  190 

V.  Toomer,  14  Smedcs  &  Marshall,  75 

V.  Turner,  6  Robinson  (La.),  382 

Egerton  v.  Third  Municipality,  1  Louisiana  Annual,  435 

J'^ichelberger  v.  Murdock,  10  Maryland,  873 

Ela  V.  Shepard,  32  New  Hamp.  277 

Eldridge  t;.  Lancy,  17  Pick,  352 

EUicott  V.  Smith,  2  Cranch,  C.  C.  543       .     '    . 

Ellington  v.  Moore,  1 7  Missouri  .... 

Elliott  V.  Jackson,  3  Wisconsin,  649 

I'.  Newby,  2  Hawks,  21     . 

V.  Stephens,  10  Iowa,  418    . 


56 


124 

,     181 

349 

305 

5,449 

548 

671 

696 

672 

490 

686 

105 

436 

162 

616 

.     487 

185,  208 

248,  369 

1,  583,  659 

.       42 

10,   418 

.     251 

134  (J 


KDEX   TO   THE   CASES   CITED.  xliii 

SECTION 

Ellison  r.  Mounts,  12  Alabama,  472 418 

Ellsworth  V.  Moore,  5  Iowa,  486 119 

Embree  v.  Hanna,  5  Johns.  101 700 

Emerson  v.  Fox,  3  Louisiana,  183 231 

V.  Partridge,  27  Vermont,  8 581,  588 

t'.  Upton,  9  Pick.  167 217,219 

I'.  Wallace,  20  New  Hamp.  567 454  a 

Emery  t;.  Davis,  17  Maine,  252 490 

V.  Lawrence,  8  Gushing,  151 612 

Emmett  v.  Yeigh,  12  Ohio  State,  335 105 

Enders  v.  Richards,  33  Missouri,  598 74 

u.  Steamer  Henry  Clay,  8  Robinson  (La.),  30       .         .         112,144,421 

English  r.  Wall,  12  Robinson  (La.),  132 91 

Enos  V.  Brown,  1  D.  Chipman,  280 351,  353 

I'.  Tuttle,  3  Conn.  27 589,  599,  655 

Ei-skine  v.  Sangston,  7  Watts,  150 .654 

f.  Staley,  12  Leigh,  406 224,453,455 

Erwin  V.  Com.  &  R.  R.  Bank,  12  Robinson  (La.),  227      .         .         .         .         165 

V. ,  3  Louisiana  Annual,  186        ....     588 

Esdon  V.  Colburn,  28  Vermont,  631 ^         246 

Estill  V.  Goodloe,  6  Louisiana  Annual,  122 583,  650 

Evans  j;.  King,  7  Missouri,  411 112,331,^421 

V.  Saul,  8  Martin,  N.  s.  247 56 

Evelethu.  Little,  16  Maine,  374 219 

Everett  v.  Herrin,  48  Maine,  537 485 

F. 

Fairbanks  i'.  Stanley,  18  Maine,  296 283,  286 

Fairfieldi).  Baldwin,  12  Pick.  388 276,282,285 

y.  Paine,  23  Maine,  49«        ....         212,218,219,220,265 

Falconer  y.  Freeman,  4  Sandford  Ch.  565 .    225 

Falls  v.  Weissinger,  11  Alabama,  801 341 

Farley  v.  Farior,  6  Louisiana  Annual,  725 105 

Farmer*  v.  Simpson,  6  Texas,  303     ...  ....         708 

Farmers'  Bank  v.  Beaston,  7  Gill  &  Johnson,  421  .         .     251,  506,  509,  511 

V.  Day,  6  Grattan,  360 231 

and  Mechanics'  Bank  v.  Little,  8  Watts  &  Sergeant,  207     .         .     434 


Farnham  v.  Cram,  15  Maine,  79 393,  395 

V.  Gilman,  24  Maine,  250 361 

Farrow  V.  Barker,  3  B.  Monroe,  217 63 

Faulkner,  In  re,  4  Hill  (N.  Y.),  598 84,  100 

. V.  Waters,  11  Pick.  473 551 

Faulks  V.  Heard,  31  Alabama,  516 658  a 

Fascon  v.  Mansfield,  2  Mass.  147 689a 

Fay  V.  Smith,  25  Vermont,  610 .         •         •         558 

Featherston  v.  Compton,  3  Louisiana  Annual,  380 692 

V. ,  8  Louisiana  Annual,  285  .         .         .         .         696 


xliv 


INDEX  TO  THE   CASES   CITED. 


Feazle  v.  Simpson,  2  Illinois  (1  Scammon),  30 
Felker  v.  Emerson,  17  Vermont,  101 
Fellows  V.  Dickens,  5  Louisiana  Annual,  131 

V.  Duncan,  13  Metcalf,  332 

■  V.  Miller,  8  Blackford,  231      . 

Felton  V.  Wads  worth,  7  Gushing,  587 
Ferris  v.  Ferris,  25  Vermont,  100 
Fessenden  v.  Hill,  6  Michigan,  242  ... 

Fettyplace  v.  Dutch,  13  Pick.  388 
Field  V.  Adreon,  7  Maryland,  209  . 

V.  Crawford,  6  Gray,  116  . 

V.  Jones,  11  Georgia,  413 

V.  Livermore,  17  Missouri,  218 

V.  Milburn,  9  Missouri,  492     . 

V.  Watkins,  5  Arkansas,  672 

Fife  V.  Clarke,  3  McCord,  347 

Fifield  V.  Wood,  9  Iowa,  250        ..         . 

■ V.  Wooster,  21  Vermont,  215 

First  v.  Miller,  4  Bibb,  311 
Fish  V.  Field,  19  Vermont,  141 
Fisher  v.  Bartlett,  8  Maine,  122  . 

—  V.  Cdnsequa,  2  Washington,  C.  C. 

~  i;.  Taylor,  2  Martin,  79,  113      . 

V.  Vose,  3  Kobinson  (La.),  457 

Fisk  V.  Herrick,  6  Mass.  271 

V.  Weston,  5  Maine,  410" 

Fitch,  Matter  of,  2  Wendell,  298 

V.  Rogers,  7  Vermont,  403     . 

V.  Ross,  4  Sergeant  &  Rawle,  557      . 

V.  Waite,  5  Conn.  117 

Fitchett  V.  Dolbee,  3  Harrington,  267. 

Fithlan  v.  New' York  &  Erie  R.  R.  Co.,  31  Penn 

Fitzgerald,  Matter  of,  2  Caines,  318     . 

V.  Blake,  42  Barbour,  513 

V.  Caldwell,  2  Dallas,  215   . 

V.  ,  4  Dallas,  251 

V. ,  1  Yeates,  274 


882 


FItzhugh  V.  Ilcllen,  3  Harris  &  Johnson,  206 
Flake  V.  Day,  22  Alabama,  132  . 
Flanagan  v.  Gilchrist,  8  Alabama,  620     . 

V.  Wood,  33  Vermont,  332   . 

Flasli  V.  Paul,  29  Alabama,  141 
Fleming  v.  Burge,  6  Alabama,  373      . 
Fletcher  v.  Fletcher,  7  New  Ham  p.  452  . 
Flower  V.  Griflith,  12  Louisiana,  345  . 
V.  Parker,  3  M;ison,  247 


Floyd  V.  Blake,  11  Abbott  Pract.  R.  349 


42, 


48, 


State,  114 


BECTIOW 

.     729 

311 

.     141 

545 
.     139 
285 
.       10 
111 
222,  432 
48,  59  a 
.     487 
,      509  a 
74 
230 
631,  686 
317 
■    658  e 
423 
251,  505 
548 
388,  389 
14,416 
.     417 
224,  435 
.     568 
530 
.       99 
423 
.     433 
221,263,481 
497,499 
477,  624 
49,  60 
190 
665,  704 
701 
.     700 
237 
.       93 
167 
428,  429 
696, 697 
.     144 
481 
.       95 
709 
10 


INDEX  TO   THE   CASES   CITED. 


xlv 


Floyd  V.  Hamilton,  33  Alabama,  235 
Folsom  V.  Haskell,  11  Cusliing,  470     . 
Ford  V.  Dyer,  -26  Mississippi,  243     . 

V.  H'urd,4  Smedes  &  Marshall,  683      . 

V.  Wilson,  Tappan,  235   .... 

V.  Woodward,  2  Smedes  &  Marshall,  260 

Forepaugh  v.  Appold,  17  B.  Monroe,  625 
Fortman  v.  Rottier,  8  Ohio  State,  548 
Fortune  v.  State  Bank,  4  Alabama,  385 

I'.  St.  Louis,  23  Missouri,  239 

Foss  V.  Stewart,  14  Maine,  312 
Foster  V.  Dryfus,  16  Indiana,  158 

V.  Dudley,  10  Foster,  463     . 

c.  Hall,  4  Humphreys,  346 

V.  Jones,  15  Mass.  185  . 

V. ,  1  M'Cord,  116  . 

V.  Sinkler,  4  Mass.  450  .... 

V.  Sweeney,  14  Sergeant  &  Eawle,  386     . 

V.  Walker,  2  Alabama,  177  . 

V.  White,  9  Porter,  221     . 

Foster's  Case,  2  Story,  131 

Fowble  V.  Walker,  4  Ohio,  64 

Fowler  V.  McClelland,  5  Ai-kansas,  188    . 

. V.  Pittsburg,  F.  W.,  &  C.  R.  R.  Co.,  35  Penn. 

Fowles  V.  Pindar,  19  Maine,  420 

Fox  V.  Reed,  3  Grant,  81 

Foyles  v.  Kelso,  1  Blackford,  215 

Franklin  n.  AVard,  3  Mason,  136 

Bunk  V.  Batchelder,  23  IVLaine,  60 

V.  Small,  24  Maine,  52     . 

Fire  Ins.  Co.  v.  West,  8  Watts  &  Sergeant,  350 


Frazier  v.  Wilcox,  4  Robinson  (La.),  517 
Freeborn  v.  Glazer,  10  California,  337 
Freeman  v.  Grist,  1  Devereux  &  Battle,  217 

V.  Howe,  24  Howard  Sup.  Ct.  450 

French  v.  Rogers,  16  New  Hamp.  177 
V.  Stanley,  21  Maine,  512 


Fridenburg  v.  Pierson,  18  California,  152 
Friedlander  v.  Myers,  2  Louisiana  Annual,  920 
Frost  V.  Brisbin,  19  AVendell,  11      . 

V.  Cook,  7  Howard  (Mi.),  357    . 

Kellogg,  23  Vermont,  308       . 

Patrick,  3  Smedes  &  Marshall,  783     . 

V.  White,  14  Louisiana  Annual,  140 

Frothinghara  v.  Haley,  3  Mass.  68 
Fuller  V.  Bryan,  20  Penn.  State,  144 
V.  Holden,  4  Mass.  498       . 


SECTION 

157,  175 

.     488 

196 

.     116,  696,  711 

439 

87,  90,  116,  696 

604 

.     729 

583,  659 

.     516 

195 

.     400 

548,  618,  620 

.       58 

620,  706 

.     697 

578 

.     740 

576,  579,  583,  607,  659 

576,  579,  607,  630,  717 

224,  435 

212 

.       ■  .         .         496 

465  a 

378 

688  a 

.     437 

622 

.     224,  435 

344 

224,  549,  669,  671 

223,  697 

.     416,  418 

263 

.     251 

572 

.     202,  204,  257 

273 

.     104 

65 

.     Ib2 

248,  3b8 

.     659 

323 

.     551 

39 

.     294,  389 


State,  22 


xlvi 


INDEX   TO   THE   CASES   CITED. 


Fullerton  v.  Mack,  2  Aikens,  415     . 
Fulton  V.  Heaton,  1  Barbour,  552 
Fulweiler  v.  Hughes,  17  Penn.  State,  440 
Funkhouscr  v.  How,  24  Missouri,  44     . 


G. 


SECTION 
200 

.     185 

657,  615 

586,  590,  706 


Gaddis  V.  Lord,  10  Iowa,  141 

Gafihey  v.  Bradford,  2  Bailey,  441  .... 

Gager  v.  Watson,  11  Conn.  168 

Gaines  v.  Beirne,  3  Alabama,  114   .         .         .         . 

Gaither  ii.  Ballew,  4  Jones,  488 

Galbraith  v.  Davis,  4  Louisiana  Annual,  95      .         .         . 

Gale  V.  Ward,  14  Mass.  352 

Galena  &  Chicago  U.  R.  R.  Co.  v.  Menzies,  26  Illinois,  121 
Gallego  V.  Gallego,  2  Brockenbrough,  285  .  .  .  . 
Galloway,  Matter  of,  21  Wendell,  32       . 

Gallup  V.  Josselyn,  7  Vermont,  334 

Gardner  v.  Hust,  2  Richardson,  601         .... 
Gannon  v.  Barringer,  2  Devereux  &  Battle,  502  . 
Garnet  v.  Wimp,  3  B.  Monroe,  360  .... 

Garretson  v.  Zacharie,  8  Martin,  N.  s.  481 
Garrett  v.  Tinnen,  7  Howard  (Mi.),  465 
Gary  v.  McCown,  6  Alabama,  370       .         .         .         .         . 
Gasherie  v.  Apple,  14  Abbott  Pract.  R.  64      .         .         . 
Gasquet  v.  Johnson,  2  Louisiana,  514  .         .         .         . 

Gassett  v.  Grout,  4  Metcalf,  486 

Gates  V.  Bushnell,  9  Conn.  530 

V.  Gates,  15  Mass.  310 

V.  Kerby,  13  Missouri,  157 


Gay  V.  Caldwell,  Hardin,  63     . 

Gee  V.  Alabama  L.  L  &  T.  Co.,  13  Alabama,  579 

V.  Cumming,  2  Haywood  (N.  C),  398 

V.  Warwick,  2  Haywood  (N.  C),  354    . 

Geery.  Chapel,  11  Gray,  18    .... 
Genin  v.  Tompkins,  12  Barbour,  265  . 
Georgia  Ins.  &  Tr.  Co.  v.  Oliver,  1  Georgia,  38 
Gerrish  v.  Sweetser,  4  Pick.  374 

Gery  v.  Ehrgood,  31  Penn.  State,  329      . 
Getchell  v.  Cliase,  37  New  Ilamp.  106 
GIbbs  V.  Chase,  10  Mass.  125  . 
Gibson  v.  Cook,  20  Pick.  15 

V.  Jenney,  15  Mass.  205       .         .         , 

V.  McLaughlin,  1  Browne,  292 

V.  Wilson,  5  Arkansas,  422  . 

Giddings  v.  Coleman,  12  New  Ilamp.  153    . 

Gilbert  v.  Crandall,  34  Vermont,  188 

V.  Ilollinger,  14  Louisiana  Annual,  441    . 


173,  744 
588 
.  623 
460 
.  509 
246 
.  256 
604 
.  701 
82 
.  254 
194 
112,  144,  421 
185 
.  170 
312 
.  208 
75  a 
.  246 
502 
221,  263 
290 
.  706 
216,  218 
.  418 
678 
496,  644,  678 
545 
.  400 
665 
.  610 
479 
463,  548 
198,  290 
.  611 
195 
.  44 
205 
523,  639,  656 
349,  362 
.     193 


KDEX   TO  THE   CASES   CITED.  xlvii 

SECTION 

Gildersleeve  v.  Caraway,  19  Alabama,  246 713 

Gile  V.  Devens,  11  Gushing,  59 193 

Gill  i;.  Downs,  26  Alabama,  670 418,421 

Gillasple  V.  Clark,  1  Tennessee,  2 312 

Gilman  v.  Hill,  36  New  Hamp.  311 199 

r.  Stetson,  16  Maine,  124 219 

Gilmer  v.  Wier,  8  Alabama,  72 183 

GUniore  v.  McNeil,  46  Maine,  532         .         .     ■    .         .         •         .373,  376,  386 
Girard  Fire  Ins.  Co.  v.  Field,  45  Penn.  Sfate,  129  ;  s.  C.  3  Grant,  329      549,  669 

Glanton  v.  Griggs,  5  Georgia,  424 721 

Glassellv.  Thomas,  3  Leigh,  113 681 

Gleason  v.  Briggs,  28  Vermont,  135 311 

I?.  Gage,  2  Allen,  410 673 

Glenn  u.  Boston  &  Sandwich  Glass  Co.,  7  Maryland,  287     .         .         .     484,671 

V.  Gill,  2  Maryland,  1 509  a 

Goble  V.  Howard,  12  Ohio  State,  165  . 34  a 

Godbold  V.  Bass,  12  Richardson,  202 247,  502 

Goddard  r.  Cunningham,  6  Iowa,  400 133,416 

V.  Hapgood,  25  Vermont,  351 453,  537 

: V.  Perkins,  9  New  Hamp.  488 222 

Gold  V.  Housatonic  Railroad  Co.,  1  Gray,  424 477 

Goldsmith  v.  Picard,  27  Alabama,  142 743,  745 

GoU  V.  Hinton,  7  Abbott  Pract.  R.  120 244,  248 

Goode  V.  Longmire,  35  Alabama,  668 246,  255  a 

Goodman  v.  Allen,  6  Louisiana  Annual,  371 338 

Goodrich  v.  Church,  20  Vermont,  187 268 

Goore  V.  McDaniel,  1  M'Cord,  480 224,  229 

Gordon  v.  Coolidge,  1  Sumner,  537 658,  659 

. i;.  Gaflfey,  11  Abbott  Pract.  R.  1 10 

V.  Jenney,  16  Mass.  465 256,  290,  371,  425 

V.  Jolmston,  4  Louisiana,  304 331 

Gore  V.  Clisby,  8  Pick.  555 465,  481 

Gorman  v.  Swaggerty,  4  Sneed,  560 452 

Goss  ?;.  Gowing,  5  Richardson,  477       .        ' _      .       54,102 

Gouch  I).  Tolman,  10  Cushing,  104 652 

Gover  y.  Barnes,  15  Maryland,  576 403 

Gower  V.  Stevens,  19  Maine,  92 428,  429 

Grace  v.  Maxfield,  6  Humphreys,  328 545 

Gracey  v.  Coates,  2  M'Cord,  224 662 

Graighle  v.  Notnagle,  Peters,  C  C.  245 253 

Graham  r.  Bi-adbury,  7  Missouri,  281 11,111,409 

V.  Burckhalter,  2  Louisiana  Annual,  415 141 

V.  Moore,  7  B.  Monroe,  53 548 

I..  Ruff,  8  Alabama,  171 107 

Grand  Gulf  R.  R.  &  B.  Co.  v.  Conger,  9  Smedes  &  Marshall,  505    .        .         131 

Grant  u.  Deuel,  3  Robinson  (La.),  17 158 

V.  Shaw,  16  Majss.  341  483,  517,  533,  551 


xlviii 


INDEX  TO   THE   CASES   CITED. 


Graves  v.  Cole,  1  G.  Greene,  405 

V.  Cooper,  8  Alabama,  811 

V.  Walker,  21  Pick.  160  . 


Gray  v.  Badgett,  5  Arkansas,  16      . 

V.  Bennett,  3  Metcalf,  522  , 

V.  Henby,  1  Smedes  &  Marshall,  598 

V.  MacLean,  1 7  Illinois,  404 

V.  Perkins,  12  Smedes  &  Marshall,  622    . 

Grayson  v.  Veeche,  12  Martin,  688 
Green  v.  Doughty,  6  New  Hamp.  572      . 

V.  Gillett,  5  Day,  485  .... 

V.  Farmers  &  Citizens'  Bank,  25  Conn.  452 

V.  Gillett,  5  Day,  485  .... 

V.  Nelson,  12  Metcalf,  567      . 

V.  Shaver,  3  Humphreys,  139     . 

Greene  v.  Pyne,  1  Alabama,  235 
Greenleaf  y.  Perrin,  8  New  Hamp.  273 
Greenvault  v.  F.  &  M.  Bank,  2  Douglass,  498 
Greenwood  v.  Rector,  Hempstead,  708 
Gregory  v.  Higgins,  10  California,  339 
Greiner  v.  Prendergast,  3  Louisiana  Annual,  376 
Gridley  v.  Harraden,  14  Mass.  496  . 
Griffith  V.  Robinson,  19  Texas,  219      . 
Grignon  v.  Astor,  2  Howard,  S.  C.  319    . 
Grigsley  v.  Love,  2  Cranch,  C.  C.  413 
Grissom  V.  Reynolds,  1  floward  (Mi.),  570 
Griswold  In  ?-e,  13  Barbour,  412 

V.  Plumb,  13  Mass.  298      . 

V.  Sliarpe,  2  California,  17     . 


Groat  V.  Gillespie,  25  Wendell,  383 
Grosvener  v.  Farmers  &  Mechanics'  Bank,  13 

V.  Gold,  9  Mass.  209 

Grove  V.  Harvey,  12  Robinson  (La.),  221    . 
Guay  V.  Andrews,  8  Louisiana  Annual,  141 
Guerin  v.  Hunt,  8  Minnesota,  477 
Guier  V.  O'Daniel,  1  BInney,  349,  note    . 
Guild  V.  Holbrook,  11  Pick.  101 
Guilhon  V.  Lindo,  9  Bosworth,  601   . 
Gunn  V.  Howell,  27  Alabama,  663 
V. ,  35  Alabama,  144   . 


Conn.  104 


694,  697, 


SEtTION 
.       113 

.       658  d 
.     656 

684 
.       12 
624 
.     339 
331 
.     543 
599 
581,  604 
474 
581,  604 
688 
.     433 
66,  208 
463,  541 
84 
.     619 
585,  588 
.       10 
618 
.     120 
84 
,     263 
711 
262,  273 
378 
10,418 
177 
.     481 
222 
.     134 
.     ■    339 
183  a 
62 
481,  551 
23 
658  a 
706,  710,  711 


H. 

Hacker  v.  Stevens,  4  McLean,  535  • 
Hackettstown  Bank  v.  Mitchell,  4  Dutcher,  516 
Hadley  V.  Peabody,  13  Gray,  200    . 
HafFey  v.  Miller,  6  Grattan,  454 
Hagan  v.  Lucas,  10  Peters,  400 


65  a 
667 
667 
331 


INDEX  TO   THE   CASES   CITED. 


xlix 


Haggart.  v.  Morgan,  1  Selden,  422 

Hagood  V.  Hunter,  1  M'Cord,  511    . 

Haight  V.  Bergh,  3  Green,  183     . 

Hair  v.  Lowe,  19  Alabama,  224 

Halbert  v.  McCulloch,  3  Metcalfe  (Ky.),  456 

V.  Stinson,  6  Blackford,  398         ..         . 

Haldeman  v.  Hillsborough  &  Cen.  R.  R.  Co.,  2  Handy, 
Hale  V.  Chandler,  3  Michigan,  531    . 

V,  Cummings,  3  Alabama,  398     . 

V.  Dun«an,  Brayton,  132 

V.  Huntley,  21  Vermont,  147 

Haley  v.  Reid,  16  Georgia,  437 
Hall  V.  Magee,  27  Alabama,  414  . 

V.  Page,  4  Georgia,  428    . 

V.  Stryker,  27  New  York,  596      . 

r.  Walbridge,  2  Aikens,  215     . 

Halsey  v.  Whitney,  4  Ma^on,  206 
Hamilton  v.  Knight,  1  Blackford,  25 
Handy  v.  Dobbin,  12  Johns.  220 

V.  Hunt,  11  Cahfornia,  343  . 

Hanna  v.  Bry,  5  Louisiana  Annual,  651 

V.  Lauring,  10  Martin,  563   . 

V.  Loring,  11  Martin,  276 

Hannahs  v.  Felt,  15  Iowa,  141 

Hanness  v.  Smith,  1  Zabrlskie,  495 

Hansen  v.  Butler,  48  Maine,  81 

Hansford  v.  Perrin,  6  B.  Monroe,  595  . 

Hanson  v.  Davis,  19  New  Hamp.  133 

Harbison  v.  McCartney,  1  Grant,  172 

Harding  v.  Harding,  25  Vermont,  487 

Hardy  v.  Colby,  42  Maine,  381    . 

Harley  v.  Charleston  Steam-Packet  Co.,  2  Miles,  249 

Harlow  v.  Becktle,  1  Blackford,  237    . 

Harmon  v.  Birchard,  8  Blackford,  418 

Harney  v.  Ellis,  11  Smedes  &  Marshall,  348 

Harper  v.  Bell,  2  Bibb,  221      . 

V.  Miller,  4  Iredell,  34      .         .         . 


Harrell  v.  Whitman,  19  Alabama,  135      . 
Harris  v.  Aiken,  3  Pick.  1    . 

V.  Dennie,  3  Peters,  292  .... 

V.  Somerset  &  Kennebec  R.  R.  Co.,  47  Maine, 

V.  Taylor,  3  Sneed,  536  .... 

Harrison  v.  Pender,  Busbee,  78   . 

V.  Renfro,  13  Missouri,  446 

Harrod  v.  Burgess,  5  Robinson  (La.),  449   . 

Harrow  v.  Lyon,  3  G.  Greene,  157 

Hart  I?.  Anthony,  15  Pick.  445     .... 


101 


298 


SECTION 

.       65 
101 
.       81 
658  e 
.     339 
624 
221,222,223,527 
227,  275 
.     228 
251,  294 
.     250 
244 
541,  545,  594 
539 
99,  225 
262,  290 
.     244 
110 
.     244 
630 
609,  626. 
697 
.       10 
221,  224 
.     311 
502 
335, 338 
572 
229,  267 
275 
.     609 
80 
.     445 
696,  711,  715 
583,  659 
317 
.     212 
457,463,541,  545,  547 
.     638 
251 
470,  674  rt 
325,  405 
.     274 
433 
.       24 
412,415 
.     474 


INDEX  TO   THE   CASES   CITED. 


Hart  V.  Dahlgreen,  16  Louisiana,  559 
Hartford  v.  Jackson,  11  New  Hamp.  145 

Quarry  Co.  v.  Pendleton,  4  Abbott  Pract.  R.  460 

Hartle  v.  Long,  5  Penn.  State,  491 
Hartley  v.  Tapley,  2  Gray,  565 
Harvey  v.  Grymes,  8  Martin,  395 
Haselton  v.  Monroe,  18  New  Hamp.  598 
Hatch  V.  Bayley,  12  Gushing,  27 

V.  Lincoln,  12  Gushing,  31      . 

Hathaway  v.  Larrabee,  27  Maine,  449 

V.  Russell,  16  Mass.  473  . 

Hatry  v.  Shunian,  13  Missouri,  547 
Haughton  v.  Eustis,  5  Law  Reporter,  505 
Haven  v.  Low,  2  New  Hamp.  13 

V.  Snow,  14  Pick.  28    .         .         . 

V.  Wentworth,  2  New  Hamp.  93 

Havis  V.  Taylor,  13  Alabama,  324    . 

V.  Trapp,  2  Nott  &  M'Cord,  130 

Hawes  v.  Langton,  8  Pick.  67  . 

V.  Waltham,  18  Pick.  451 

Hawley  v.  Delmas,  4  Galifornia,  195 
Hawthorn  v.  St.  Louis,  11  Missouri,  59 
Hayden  v.  Sample,  10  Missouri,  215 
Haynes, -Ex  joar^e,  18  Wendell,  611     . 

V.  Small,  22  Maine,  14 

Hays  V.  Gorby,  3  Iowa,  2^ 

Hayward  v.  McGrory,  33  Illinois,  459 

Hazard  v.  Agricultural  Bank,  11  Robinson  (La.),  326 

V.  Franklin,  2  Alabama,  349 

V.  Jordan,  12  Alabama,  180 

Hazelrigg  v.  Donaldson,  2. Metcalfe  (Ky.),  445 

Hazeltine  v.  Page,  4  Vermont,  49 

Ilazen  v.  Emei'son,  9  Pick.  144 

Head  v.  ]\Ierrill,  34  Maine,  586    . 

Heard  v.  Fairbanks,  5  Metcalf,  111 

Hearn  v.  Crutcher,  4  Yerger,  461 

V.  Foster,  21  Texas,  401 

Heath  v.  Lent,  1  California,  410 
Heflfernan  v.  Grymes,  2  Leigh,  512 
llcldenbach  v.  Schland,  10  Howard  Pract.  R.  477 
Ilelme  v.  Pollard,  14  Louisiana  Annual,  306    . 
Hemmenway  v.  Pratt,  23  Vermont,  332 

V.  Wheeler,  14  Pick.  408     . 

Henderson  v.  Drace,  30  Missouri,  358 

V.  Henderson,  1  Cranch,  C.  C.  469 

V.  Thornton,  37  JMississippi,  448 

Hennessey  v.  Farrell,  4  Gushing,  267 


SECTION 

. 

657 

. 

.  245 

. 

.   316  a 

. 

.     498 

. 

612 

. 

.  224 

. 

700 

. 

245  a 

. 

.   345  a 

•    •  • 

.     237 

561,  563, 

684,  688 

, 

406,  409 

, 

224, 435 

245,  539 

218,  220 

463,  541 

52, 

741,  742 

.  404 

639, 

649,  652 

. 

568,  572 

. 

101 

•    .. 

.  516 

159 

176,  739 

84,  99, 

100,  106 

. 

204,  208 

. 

.  119 

. 

437 

, 

.   79 

. 

667 

. 

17,34 

,    , 

323 

. 

.  595 

. 

647,  678 

.  472 

, 

249,  258 

, 

490,  508 

. 

525 

. 

176,  179 

. 

697 

. 

.   61 

. 

653 

.  548 

256 

258,  432 

.  147 

. 

81 

27,  275 

,    , 

667 

INDEX  TO  THE   CASES   CITED. 


li 


Henrle  v.  Sweasey,  5  Blackford,  273   . 

Henry  v.  Mitchell,  32  Missouri,  512 

Hepp  V.  Glover,  15  Louisiana,  461 

Hergman  v.  Dettlebach,  11  Howard  Pract.  R.  46 

Herndon  v.  Forney,  4  Alabama,  243    . 

Hemstein  v.  Matthewson,  5  Howard  Pract.  R.  196 

Hervey  v.  Champion,  11  Humphreys,  569 

Hess  V.  Shorb,  7  Penn.  State,  231    . 

Hesseltine  v.  Stockwell,  30  Maine,  237 

Hewes  V.  Parkman,  20  Pick.  90 

Hewitt  V.  Wheeler,  22  Conn.  557 

Hibbs  V.  Blair,  14  Penn.  State,  413 

Hicks  V.  Gleason,  20  Vermont,  139      . 

Hill  V.  Beach,  1  Beasley,  31     . 

V.  Bond,  22  Howard  Pract.  R.  272 

V.  Chatfield,  4  Louisiana  Annual,  562 

V.  Child,  3  Devereux,  265     . 

V.  Hunnewell,  1  Pick.  192 

V.  Kraft,  29* Penn.  State,  181 

V.  La  Crosse  &  M.  R.  R.  Co.,  14  Wisconsin, 

V.  Merle,  10  Louisiana,  108  . 

— -  V.  Rushing,  4  Alabama,  212 

V.  Wiggin,  11  Foster,  292 

Hinckley  v.  Bridgham,  46  Maine,  450 

V.  Williams,  1  Cushing,  490  . 

Hinkle  v.  Currin,  1  Humphreys,  74 

V. ,  2  Humphreys,  137  . 

Hinsdill  v.  Safford,  11  Vermont,  309 
Hitchcock  V.  Egerton,  8  Vermont,  202 

V.  Watson,  18  Illinois,  289 

Hitt  V.  Lacy,  3  Alabama,  104      . 
Hoar  V.  Marshall,  2  Gray,  251 
Hockaday  v.  Sallee,  26  Missouri,  219  . 
Hodskin  v.  Cox,  7  Cushing,  471 
Hodson  V.  McConnell,  12  Illinois,  170 
Holbrook  v.  Baker,  5  Maine,  309      . 

V.  Hyde,  1  Vermont,  286 

V.  Waters,  19  Pick.  354    . 

Holcomb  V.  Faxworth,  34  Mississippi,  265 

Hollingshead,  In  re,  6  Wendell,  553 

Hollister  v.  Goodale,  8  Conn.  332 

Holly  V.  Huggeford,  8  Pick.  73 

Holmes  v.  Barclay,  4  Louisiana  Annual,  63 

V.  Remsen,  4  Johns.  Ch'y  R.  460 

V.  ,  20  Johns.  229 

Holston  Man.  Co.  v.  Lea,  18  Georgia,  647 
Homan  v.  BrinckerhofF,  1  Denio,  184  . 


291 


453, 


157, 


620, 


SECTION 
95 

237 

.  245 

249 

.  166 

10 

.  224 

498 

.  199 

195 

,  546 

150 

542,  701 

508 

416 

10 

263 

288 

588 

506 

.  323 

167,  168 

381,  388 

377  a 

.     487 

673 

.  678 

588 

.  481 

659,  663 

702,  706 

501 

.  247 

373 

.  604 

245,  539 

.  199 

247,  501 

,  166 

96 

.  256 

246 

.   10 

706 

.  706 

95 

.  125 


lii  INDEX  TO  THE   CASES   CITED. 

SECrrow 
Home  Mutual  Ins.  Co.  v.  Gamble,  14  Missouri,  407      .        .        .      674,  676,  711 

Hooper  v.  Hills,  9  Pick.  435 __     .         .         523 

Hopkins  v.  Kay,  1  Metcalf,  79 481 

V.  Nichols,  22  Texas,  206 101 

V.  Suttles,  Hardin,  95,  note 108 

Hopkirk  V.  Bridges,  4  Hening  &  Munford,  413 5 

Horn  V.  Bayard,  11  Robinson  (La.),  259 158,  175,  180 

Hoshaw  V.  Hoshaw,  8  Blackford,  258 171 

Hoskins  v.  Johnson,  24  Georgia,  625 561 

Hotchkissr.  McVickar,  12  Johns.  403      . 290 

Houghton  V.  Ault,  16  Howard  Pract.  R.  77 67 

Housemans  v.  Heilbron,  23  Georgia,  186 460 

Houston  V.  Belcher,  12  Smedes  &  Marshall,  514  ...       116,  124,  127 

u.  Nowland,  7  Gill  &  Johnson,  480 605 

w.  Walcott,  1  Iowa,  86 697,711 

y.  Wolcott,  7  Iowa,  173 630  a 

Hovey  v.  Crane,  12  Pick.  167      . 650 

It).  Wait,  17  Pick.  196  .        '. ^     .         218,219 

How  -a.  Field,  5  Mass.  390 .'        .         .     465 

Howard  v.  Card,  6  Maine,  353 539 

V.  Crawford,  21  Texas,  399 673 

V.  Daniels,  5  New  Hamp.  137 237 

V.  Smith,  12  Pick.  202 374 

V.  Wliittemore,  9  New  Hamp.  134 363 

V.  Williams,  2  Pick.  80 195 

Howell  u.  Freeman,  3  Mass.  121 620 

V.  Kingsbury,  15  Wisconsin,  193 94 

Howes  V.  Spicer,  23  Vermont,  508 190,  381 

Howland  v.  Spencer,  14  New  Hamp.  530 481 

Hoy  r.  Brown,  1  Harrison,  157 .  33 

Hoyt  V.  Robinson,  10  Gray,  371 •         .561 

— ^r.  Swift,  13  Vermont,  129 457,463,541,547 

Hubbard  v.  Williams,  1  Minnesota,  54 588 

Hubbellv.  Root,  2  Allen,  185 297  a 

Hucheson  v.  Ross,  2  A.  K.  Marshall,  349 115,  123 

Hudson  V.  Daily,  13  Alabama,  722 418 

V.  Hunt,  5  New  Hamp.  538 539,  561 

Huff  u.  Milk,  7  Yerger,  42 589,620 

Hugg  V.  Booth,  2  Iredell,  282 547,  548 

Hughes  y.  Lapice,  5  Smedes  &  Marshall,  451 216 

V.  Martin,  1  Arkansas,  386 103 

V.  Stinnett,  9  Arkansas,  211 103 

Hull  V.  Blake,  13  Mass.  153 708 

Humphrey  v.  Barns,  Croke  Eliz.  691        .         .         .         ••       .         •         •         715 

V.  Warren,  45  Maine,  216 635 

Humphreys  y.  Cobb,  22  Maine,  380 305,373,374 

V.  l^atthews,  11  Illinois,  471 23 


INDEX   TO   THE   CASES   CITED.  liii 

SECTION 

Hunt  V.  Coon,  9  Indiana,  537 461,  659 

V.  Field,  1  Stockton,  36 225 

V.  Johnson,  Freeman,  282 5 

V.  Norris,  4  Martin,  532 12,  19 

V.  Stevens,  3  Iredell,  365 251,  609 

Hunter  v.  Case,  20  Vermont,  195 465 

V.  Ladd,  2  Illinois  (1  Scammon),  551 148 

Huntington  y.  Blaisdell,  2  New  Hamp.  317 256,290 

Huntley  v.  Stone,  4  Wisconsin,  91 487,  514 

Hurd,  Matter  of,  9  Wendell,  465 81 

Hurlburty.  Hicks,  17  Vermont,  193 506 

Hurlbut,  V.  Seeley,  11  Howard  Pract.  R.  507 65 

Hussey  v.  Thornton,  4  Mass.  405 246 

Hutchins  v.  Brown,  4  Hams  &  McHenry,  498 216 

t>.  Evans,  13  Vermont,  541 588 

.  V.  Hawley,  9  Vermont,  295 463,  541,  578 

V.  Sprague,  4  New  Hamp.  469 523 

V.  Watts,  35  Vermont,  360 614 

Hutchinson  w.  Eddy,  29  Maine,  91 715 

. V.  Lamb,  Brayton,  234     .         .         .      ^  .         •         •         '•         .10 

V.  Parkhurst,  1  Aikens,  258  .         .         .         •         •         •         372 

Hyde  v.  Higgins,  15  Louisiana  Annual,  1 1^ 

Hynson  v.  Taylor,  3  Arkansas,  552 1^ 

L 

Iglehart  v.  Moore,  21  Texas,  501 58^ 

iTsley  1-.  Nichols,  12  Pick.  270 200 

Ingalls  V.  Dennett,  6  Maine,  79 686 

Ingrahamt..  Phillips,  1  Day,  117 •         •         224,435 

Irish  V.  Wright,  12  Robinson  (La.),  563 10 

Irvine  v.  Lumbermen's  Bank,  2  Watts  &  Sergeant,  190  .         •         .         •  700 

u.  Scobe,  5  Littell,  70 216 

Irwin  «.  Pittsburg  &  C.R.  R.  Co.,  43  Penn.  State,  488    ....  665 

Isaacks  v.  Edwards,  7  Humphreys,  465 405 

Mam  V.  Downer,  8  Conn.  282 233 

Ives  V.  Bartholomew,  9  Conn.  309 732,  733 

V.  Hamlin,  5  Gushing,  534 381 

Tvv  w.  Barnhartt,  10  Missouri,  151 729 

J. 

Jackson  v.  Bank  U.  S.,  10  Penn.  State,  61 491 

V.  HoUoway,  14  B.  Monroe,  133 413 

-u.  Perry,  13  B.Monroe,  231 ^7 

V.  Shipman,  28  Alabama,  488 658  a,  682 

V.  Stanley,  2  Alabama,  326     .         .         .         •         •     133,  135,  148,  416 

I'.  Walsworth,  1  Johns.  Cases,  372       ..'••••  ^1 

V.  Warwick,  1 7  Louisiana,  436 1  ^  *■ 


liv 


INDEX  TO   THE   CASES   CITED 


Jackson's  Ex'r  v.  Lloyd,  44  Penn.  State,  82 
Jacoby  v.  Gogell,  5  Sergeant  &  Rawle,  450 
James  v.  Do  well,  7  Smedes  &  Marshall,  833 
Jameson  v.  Paddock,  14  Vermont,  491 

V.  Ware,  6  Vermont,  610 

Jaquett  v.  Palmer,  2  Harrington,  144 
JefFery  v.  Wooley,  5  Halsted,  123 
Jenney  v.  Delesdernier,  20  Maine,  183 

V.  Rodman,  16  Mass.  464 

Jennings  v.  Summers,  7  Howard  (Ml.),  453 
Jewel  V.  Howe,  3  Watts,  144 
Jewett  V.  Bacon,  6  Mass.  60 

V.  Dockray,  34  Maine,  45     . 

V.  Torrey,  11  Mass.  219 

Johns  V.  Church,  12  Pick.  557 

V.  Field,  5  Alabama,  484 

Johnson  v.  Buell,  26  Illinois,  66 
V.  Carry,  2  California,  33 


--V.  Day,  17  Pick.  106 

—  V.  Edson,  2  Aikens,  299 

—  V.  Fleetwood,  1  Harrington,  442 

—  V.  Gorham,  6  California,  195 

—  V.  Griffith,  2  Cranch,  C.  C.  199 

—  V.  Hale,  3  Stewart  &  Porter,  331 

—  V.  King,  6  Humphreys,  233 

—  V.  Moss,  20  Wendell,  145 

—  II.  Short,  2  Louisiana  Annual,  277 

—  V.  Thayer,  17  Maine,  401 


Jones  V.  Anderson,  7  Leigh,  308 

V.  ^^tna  Ins.  Co.,  14  Conn.  501 

i\  Bradner,  10  Barbour,  193 

V.  Buzzard,  2  Arkansas,  415 

V.  Gilbert,  13  Conn.  507 

V.  Gorham,  2  Mass.  375      . 

V.  Howell,  16  Alabama,  695    , 

V.  Huntington,  9  Missouri,  249 

V.  Jones,  1  Bland,  443 

V.  Kirksey,  10  Alabama,  839      . 

V.  Leake,  11  Smedes  &  Marshall,  591      . 

V.  M.  and  A.  Railroad  Co.,  5  Howard  (M 

V.  New  York  and  Erie  R.  R.  Co.,  1  Grant 

V.  Norris,  2  Alabama,  526 

V.  O'Donnell,  9  Alabama,  695 

V.  Peasley,  3  G.  Greene,  53 

V.  Pope,  6  Alabama,  154 

V.  Winchester,  6  New  Ilainp.  497 

V.  Wood,  30  Averment,  268     . 


1,407 
457 


560, 


BECTION 

665 

14, 104 

416 

375,  388 

373 

508 

33 

361 

381 

550 

101 

674,  680 

347 

.     381 

197,  391,  392 

.      630,  717 

112,421 

.     674 

214,  216,  220 

228,  362,  415 

247 

.     453 

455 

.     102 

567,  570 

.     207 

23 

.     610 

131 

.     489 

246 

.       20 

392,  394 

.     511 

659 

.     454 

251,  506 

.     744 

106 

.     339 

452,465,477 

.     481 

399 

.     331 

112 

.     474 

701 


INDEX  TO   THE   CASES   CITED.  h 

SECTION 

Jordan  v.  Gallup,  16  Conn.  536 290,  294 

V.  Hazard,  10  Alabama,  221 36 

Judah  V.  Duncan,  2  Bailey,  454 421 

V,  Judd,  5  Day,  534 608 

Judson  V.  Lewis,  7  Louisiana  Annual,  55 196 

Junction  R.  R  Co.  v.  Cleneay,  13  Indiana,  161        ...         .  575,  588 

K. 

Kahn  V.  Herman,  3  Georgia,  266         . 130 

Kaley  v.  Abbot,  14  New  Hamp.  359 602 

Kane  v.  Pilcher,  7  B.  Monroe,  651 331 

Kanouse  v.  Dorraedy,  3  Denio,  567 320 

Keep  V.  Sanderson,  12  Wisconsin,  352 654 

Kellogg  V.  Miller,  6  Arkansas,  468 115 

Kelly  V.  Bowman,  12  Pick.  383  634,  639,  649,  656 

V.  Dexter,  15  Vermont,  310   ......  351,353,383 

r.  Lane,  28  Howard  Pract.R.  128  225 

Kendall  v.  Brown,  7  Louisiana  Annual,  668 317,  318 

V.  Morse,  43  New  Hamp.  553 292 

Kennedy  v.  Aldridge,  5  B.  Monroe,  141 514 

V.  Baillie,  3  Yeates,  55 62 

u.  Brent,  6  Cranch,  187 191,453 

V.  Dillon,  1  A.  K.  Marshall,  354 84 

V.  Raguet,  1  Bay,  484 433 

Konnon  v.  Ficklin,  6  B.  Monroe,  414 .263 

Kergin  v.  Dawson,  6  Illinois  (1  Gilman),  86     ...         .  539,  653,  654 

Kettle  V.  Harvey,  21  Vermont,  301 541,  553 

Kidd  V.  Shepherd,  4  Mass.  238 620 

Kidder  V.  Packard,  13  Mass.  80  . 564 

Kidderlin  v.  Myer,  2  Miles,  242 452 

Kieffer  v.  Elder,  18  Penn.  State,  388 587,  588,  589,  591 

Killeyy.  Scannell,  12  California,  73 253  a 

Killsa  V.  Lermond,  6  Maine,  116 706 

Kimball  v.  Donald,  20  Missouri,  577 611 

V.  Gay,  16  Vermont,  131 588 

V.  Plant,  14  Louisiana,  511 585,  588,  697 

y.  Wellington,  20  New  Hamp.  439 275 

Kimbrough  y.  Davis,  34  Alabama,  583 608,717 

Kincaid  v.  Neall,  3  M'Cord,  201. 262,  273 

King  V.  Moore,  6  Alabama,  160 508 

V.  Murphy,  1  Stewart,  228 609 

Kingsland  v.  Cowman,  5  Hill  (N.  Y.),  608 100 

V.  Worsbam,  15  Missouri,  657 42 

Kingsley  v.  ^lissouri  Fire  Co.,  14  Missouri,  467 570 

Kinney  u.  Heald,  17  Arkansas,  397 92 

Kirkman  v.  Hamilton,  9  Martin,  297 533 

I'.  Patton,  19  Alabama,  32 112 


Ivi 


INDEX   TO   THE   CASES   CITED, 


Kirksey  v.  Bates,  1  Alabama,  303 

V.  Dubose,  19  Alabama,  43 

V.  Jones,  7  Alabama,  622 

Kittredge  v.  Emerson,  15  New  Hamp.  227 

V.  Sumner,  11  Pick.  50 

V.  Warren,  14  New  Hamp.  509 

Knabb  v.  Drake,  23  Penn.  State,  489 
Knap  V.  Sprague,  9  Mass.  258 
Knapp  V.  Le  van  way,  27  Vermont,  298 
Knight  V.  Gorham,  4  Maine,  492 
Knox  V.  Protection  Ins.  Co.,  9  Conn.  430 

V.  Schepler,  2  Hill  (S.  C),  595       . 

Kritzer  v.  Smith,  21  Missouri,  296 
Kugler  V.  Shreve,  4  Dutcher,  129     . 
Kuhn  V.  Graves,  9  Iowa,  303 
Kyle  V.  Connelly,  3  Leigh,  719 


Labeaume  v.  Sweeney,  17  Missouri,  153 
Lackey  v.  Seibert,  23  Missouri,  85    . 
Ladd  V.  Hill,  4  Vermont,  164 

V.  North,  2  Mass.  514      . 

Laighton  v.  Lord,  9  Foster,  237 
Lamb  v.  Day,  8  Vermont,  407 

V.  Franklin  Man.  Co.,  18  Maine,  187 

V.  Stone,  11  Pick.  527    . 

Lambard  v.  Pike,  33  Maine,  141 
Lambden  v.  Bowie,  2  Maryland,  334 
Lambert  v.  Craig,  12  Pick.  199 
Lambeth  v.  Turnbull,  5  Robinson  (La.),  264 
Lamkin  v.  Phillips,  9  Porter,  98 
Lamprey  v.  Leavitt,  20  New  Hamp.  544 
Lane  v.  Fellows,  1  Missouri,  251 

V.  Felt,  7  Gray,  491 

V.  Jackson,  5  Mass.  157 

V.  Nowell,  15  Maine,  86 

Langdon  v.  Conklin,  10  Ohio  State,  439 

V.  Lockett,  6  Alabama,  727 

Langley  v.  Berry,  14  New  Hamp.  82 
Lannan  v.  Smith,  7  Gray,  150 
Lasley  v.  Sislod',  7  Howard  (Mi.),  157 
Lathrop  V.  Blake,  3  Foster,  46 

>~  V.  Cook,  14  Maine,  414 

V.  Snyder,  16  Wisconsin,  293 

Lawlin  V.  Clay,  4  Littell,  283 

Lawrence  v.  Fcatherston,  10  Smedes  &  Marshall 

v.  Jones,  15  Abbott  Pract.  R.  110 


345 


157, 


269, 


528, 


604. 


210, 


SECTION 

.     327 

185 

182,  727,  743 

224,  435 

.     246 

224,  435 

244  a,  479 

351,  856,  428 

.      636,  641 

523 

469,  549,  669 

571 

144,  409 

64 

.     221 

131 


.     843 

221,  224 

.     248 

290 

285,  381 

203 

652,  653 

458, 640 

.     237 

403 

.     278 

245 

607,  630,  717 

381 

.     108 

461,  481 

.     256 

482 

.     417 

.      509  a 

.     601 

612 

.     654 

267,  290,  371 

.      389,  391 

95 

.     442 

142 

.     400 


INDEX  TO  THE  CASES  QTED, 


Lawrence  v.  Lane,  9  Illinois  (4  Gilman),  354 

— V.  Yeatman,  3  Illinois  (2  Scammon),  15 

Layman  v.  Beam,  6  Wharton,  181  . 
Lea  V.  Maxwell,  1  Head,  365 

v.  Vail,  3  Illinois  (2  Scammon),  473 

L   i-Ii  0.  Cook,  10  Vermont,  239 

V.  Thomas,  2  Nott  &  M'Cord,  110 

Lr.Qed  V.  Bryant,  13  Mass.  224 

V.  Vandenburgh,  8  Howard  Pract.  R.  77 

V. ,  7  Howard  Pract.  R.  379 

Lecesne  v.  Cottin,  10  Martin,  174    . 
Lt^e  V  Pahner,  18  Louisiana,  405 

0.  Peters,  1  Smedes  &  Marshall,  503 

r.  Stanley,  9  Howard  Pract.  R.  272 

Lec'e  V.  "Walker,  18  Louisiana,  1 
Leo;ro  V.  Staples,  16  Maine,  252  . 
Leigh  V.  Smith,  5  Alabama,  583 
Leland  v.  Sabin,  7  Foster,  74 
Lenox  v.  Howland,  3  Caines,  323    • 
Lessing  v.  Vertrees,  32  IVIissouri,  431  . 
Levy  V.  Levy,  11  Louisiana,  581 

V.  Millman,  7  Georgia,  167 

Lewis  V.  Buck,  7  Minnesota,  104      . 

V.  Butler,  Kentucky  Decisions  (Sneed),  290 

V.  Dubose,  4  Richardson,  219 

V.  Kennedy,  3  G.  Greene,  57     . 

v.  Lyman,  22  Pick.  437 

V.  Prenatt,  24  Indiana,  98 

V.  Sheffield,  1  Alabama,  134 

V.  Smith,  2  Cranch,  C.  C.  571    . 

V.  Whittemore,  5  New  Hamp.  364 

Libbey  v.  Hodgdon,  9  New  Hamp.  394 
Lightner  v.  Steinagel,  33  Illinois,  580 
Lincoln  v.  Beebe,  11  Arkansas,  697     . 

V.  White,  30  Maine,  291      . 

Lindau  v.  Arnold,  4  Strobhart,  290 
Lindell  v.  Benton,  6  Missouri,  361   . 
Lindner  v.  Aaron,  5  Howard  (Mi.),  581 
Lindsay  v.  Larned,  17  Mass.  190 
Lindsley  v.  Malone,  23  Penn.  State,  24 
Little  V.  Hale,  11  Vermont,  482 
Littlefield  v.  Hodge,  6  Mchigan,  326 

V.  Smith,  17  Maine,  327  . 

Littlejohn  v.  Wilcox,  2  Louisiana  Annual,  620 
Livengood  v.  Shaw,  10  Missouri,  273 
Livermore  v.  Rhodes,  27  Howard  Pract.  R.  506 
Livingston  v.  Smith,  5  Peters,  90 


Ivii 

SECTION 

706 

.     127 

215 

.     214 

147 

.       53 

124 

.     389 

221 

.     256 

313 

.     697 

107. 

.   .    67 

548 

.     528 

.       460,658  6 

.     602 

.  13,  400 

.546 

.     23,  95 

30,  108 

251 

.      108, 115 

545 

.       77 

246 

.629  a 

661 

.     541,  546 

199 

.       79 

506, 508 

.     324 

235 

.     697 

434 

.      133,416 

732 

.     406,418 

588 

.     588 

.      •  609 

.      158,  176 

103,  409 

.    75  a 

185,  253,  306 


Iviii  INDEX   TO  THE  CASES   CITED. 

SECTIOa 

Lock  r.  Johnson,  36  Maine,  464 479,630,717 

Locke  V.  Tippets,  7  Mass.  149 620,  674 

Locket  V.  Child,  11  Alabama,  640 566 

Lockhart  v.  Johnson,  9  Alabama,  223 658  6 

Lodge  V.  Lodge,  5  Mason,  407 .279 

Loftinu.  Shackleford,  17  Alabama,  455 689 

Lomerson  u.  Hoffman,  4  Zabriskie,  674 697,711 

V.  Huffman,  1  Dutcher,  625 461,  548,  659 

Loomis  V.  Green,  7  Maine,  386 199 

Lord  V.  Gaddis,  6  Iowa,  57 417 

Loring  v.  Folger,  7  Gray,  505 433  a,  711 

Louderman  I'.  Wilson,  2  Harris  &  Johnson,  379 550 

Love  I'.  Fairfield,  10  Illinois  (5  Gilman),  303 126 

V.  Harper,  4  Humphreys,  113 263 

.  y.  Kidwell,  4  Blackford,  553 167,169 

— — Voorhies  13  Louisiana  Annual,  549 317,  322  a 

Lovejoy  y.  Albree,  33  Maine,  414 474,696 

V.  Hutchins,  23  Maine,  272 295,  297,  309 

V.  Lee,  35  Vermont,  430 481,  506,  508 

Loveladyv.  Harkins,  6  Smedes&  Marshall,  412 420 

Lovell  V.  Sabin,  15  New  Hamp.  29 297,  299 

Lovely  v.  Caldwell,  4  Alabama,  684 614 

Lovier  u.  Gilpin,  6  Dana,  321 185,397,405,729 

Lowe  y.  Derrick,  9  Porter,  404 113,147 

Lowry  v.  Cady,  4  Vermont,  504 381 

V.  Clements,  9  Alabama,  422 460 

V.  Lumbermen's  Bank,  2  Watts  &  Sergeant,  210       ...         .     708 

y.  Stevens,  8  Vermont,  113 388 

r.  Stowe,  7  Porter,  483   • 91,112,127,147,416 

V.  Walker,  5  Vermont,  181 290,  371 

Lucas  V.  Godwin,  6  Alabama,  831 207,  238 

Lucky  y.  Miller,  8  Yerger,  90 126 

Ludden  v.  Leavitt,  9  Mass.  104 290,  349,  351,  367,  371 

Ludlow  V.  Bingham,  4  Dallas,  47 581,  588 

Luffu.  Pope,  5  Hill  (N.  Y.),  413;  s.  C.  7lbid.  577     ....         .         .611 

Lummis  v.  Boon,  2  Pennington,  734 229 

Lundie  v.  Bradford,  26  Alabama,  512- 517,541,545 

Lupton  V.  Cutter,  8  Pick.  298 481,544 

Lyford  v.  Demerritt,  32  New  Hamp.  234 706  a 

Lyle  V.  Barker,  5  BInney,  457 245,  539 

V.  Foreman,  1  Dallas,  480 62 

L>Tnan  v.  Cartwright,  3  E.  D.  Smith,  117 706 

V.  Dow,  25  Vermont,  405 266 

V.  Lyman,  11  Mass.  317 381 

u.  Orr,  26  Vermont,  119 665 

V.  Parker,  33  Maine,  31 642 

Lynd  v.  Picket,  7  Minnesota,  184 195 


INDEX   TO   THE   CASES   CITED. 


lix 


LjTidon  V.  Gorham,  1  Gallison,  367 
Lyon  V.  Rood,  12  Vermont,  233  . 
V.  Sanford,  5  Conn.  544 


Mc. 


190 


LIcAllister  v.  Brooks,  22  Maine,  80       ...         . 

V.  Penn.  Ins.  Co.,  28  Missouri,  214 

McBride  v.  Farmers'  Bank  of  Salem,  28  Barbour,  476 

I'.  Floyd,  2  Bailey,  209       . 

McCaffrey  v.  Moore,  18  Pick.  492 

McCarn  v.  Piivers,  7  Iowa,  404 

McCartney  v.  Branch  Bank,  3  Alabama,  709 

McCarty  v.  Emlen,  2  Dallas,  277;   s.  c.  2  Yeates 

V. ,  2  Yeates,  190 

McCluny  v.  Jackson,  6  Grattan,  96 

McCobb  v.  Tyler,  2  Cranch,  C.  C.  199 

McCoid  V.  Beatty,  12  Iowa,  299 

McCollem  v.  White,  23  Indiana,  43     . 

McCoombe  v.  Dunch,  2  Dallas,  73    . 

McCoy  V.  Williams,  6  Illinois  (1  Gilman),  584 

McCreary  i'.  Topper,  10  Penn.  State,  419 

McCuUoch  1-.  Foster,  4  Yerger,  162     . 

McCullough  V.  Grishgbber,  4  Watts  &  Sergeant,  201 

V.  Walton,  11  Alabama,  495     . 

■  McDaniel  r.  Hughes,  3  East,  367     . 
McDonald  v.  Forsyth,  13  Missouri,  549 
McDougal  V.  Hennepin  County,  4  Minnesota,  184 
McDowell  V.  Crook,  10  Louisiana  Annual,  31 
McEvoy  V.  Lane,  9  Missouri,  48 
McFadden  i'.  O'Donnell,  18  California,  160 
McFarland  v.  Farmer,  42  New  Hamp.  386 
McGehee  v.  Walke,  15  Alabama,  183 
McIntjTe  V.  White,  5  Howard  (Mi.),  298 
McKay  v.  Harrower,  27  Barbour,  463 
McKellar  v.  Couch,  34  Alabama,  336 
McKenzie  v.  Buchan,  1  Xott  &  M'Cord,  205 
McMechan  v.  Griffing,  9  Pick.  53  7  . 
McMeekin  v.  The  State,  9  Arkansas  (4  English),  553 
McMenomy  v.  Ferrers,  3  Johns.  71 
McMillan  v.  Dana,  18  California,  339  . 

. V.  Richards,  9  California,  365   . 

McMinn  v.  Hall,  2  Tennessee,  328 
McXamara  v.  Ellis,  14  Indiana,  516 
McNeil  V.  Bean,  32  Vermont,  429 
McNeill  V.  Glass,  1  Martin,  N.  s.  261 
McPherson  v.  Snowden,  19  Maryland,  197 
McQueen  v.  Mddletnwn  Man.  Co.,  16  Johns.  5 


SECTION 

568 

.     256 

224,  239 


578,  708,  710,  718 
477 
.     222 
224,  262,  273 
.     620 
285 
.       91 
570,  620 
.     702 


275 

.     263 

608 

63,  101 

81 

.     683 

498 

84,  108 

732,  736 

157,  182 

708,  723 

.       10 

516 

.     653 

653 

.     701 

246 

.     541 

126 

222,  299,  299  a 

726 

.     123,  143 

241 

.     516 

611 

317,  319,  321,  323 
585 
550,  556 
106 
.     311 
245 
4  a,  509  a 
79 


Ix  INDEX  TO  THE   CASES  CITED. 

Skction 

McEae  v.  Austin,  9  Louisiana  Annual,  360 321 

V.  McLean,  3  Porter,  138 827,  331 

McReynolds  v.  Neal,  8  Humphreys,  12 84 

M. 

Mace  V.  Heald,  36  Maine,  136 '        667 

Mack  y.  Parks,  8  Gray,  517 252 

Mackey  v.  Hodgson,  9  Penn.  State,  468 665 

Macomber  u.  Doane,  2  Allen,  541 611 

V.  Wright,  35  Maine,  156 560 

Magee  v.  Callan,  4  Cranch,  C.  C.  251 315 

Magne  v.  Seymour,  5  Wendell,  309 294 

Maher  v.  Brown,  2  Louisiana,  492 523 

Mahnke  v.  Damon,  3  Iowa,  107 174 

Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438     .        .        .        .    463,  481,  541 

Malley  v.  Altraan,  14  Wisconsin,  22 452 

Malone  v.  Samuel,  3  A.  K.  Marshall,  350 216 

Mamlock  v.  White,  20  California,  598 185 

Manchester  u.  Smith,  12  Pick.  113 694 

Mandel  v.  Peet,  18  Arkansas,  236  ...         39,  94,  107,  120,  134,  399 

Mandeville  v.  Welch,  5  Wheaton,  277 611 

Mankin  v.  Chandler,  2  Brockenbrough,  125 5,  706 

Mann  y.  Buford,  3  Alabama,  312 ^       .     464,515,659 

Mantz  V.  Hendley,  2  Hening  &  Munford,  308         ..         .         84,  93, 108, 131 

Manufacturers' Bank  u.  Osgood,  12  Maine,  117 684 

Maples  V.  Tunis,  11  Humphreys,  108 84,  88,  90 

Marion  v.  Faxon,  20  Conn.  486 248 

Maris  V.  Schermerhorn,  3  Wharton,  13 211 

Marlin  v.  Kirksey,  23  Georgia,  164 614 

Marnine  v.  Murphy,  8  Indiana,  272 139 

Marsh  V.  Backus,  16  Barbour,  483 .         .     196 

w.  Davis,  24  Vermont,  363 599,717 

Marshall  y.  Betner,  17  Alabama,  832 730,744,745 

V.  Grand  Gulf  R.  R.  &  Banking  Co.,  5  Louisiana  Annual,  360  550 

V.  Town,  28  Vermont,  14 430 

V.  AVhite,  8  Porter,  551 10,  36 

Marston  v.  Carr,  16  Alabama,  325 481 

y.  Carter,  12  New  Hamp.  159    ...*....         247 

Martin  v.  Branch  Bank,  14  Louisiana,  415 7d 

y.  Dryden,  6  Illinois  (1  Gilman),  187  .         .         .         221,  224,  229,  436 

y.  Foreman,  18  Arkansas,  249 453 

V.  Michael,  23  Missouri,  50 225 

y.  Potter,  11  Gray,  37 605 

y.  Tliompson,  3  Bibb,  252 116,139 

Marty,  In  re,  3  Barbour,  229 ...       13 

Marvel  y.  Houston,  2  Harrington,  349 496 

Marvin  v.  Hawley,  9  Missouri,  382  506 


KDEX  TO  THE  CASES   CITED.  Ixi 

8ECTIOK 

Mason  v.  Ambler,  6  Allen,  124 594 

V.  Anderson,  3  Monroe,  293 207,  216,  238 

V.  Briggs,  16  Mass.  453 376 

V.  McCampbell,  2  Arkansas,  506 653 

V.  Noonan,  7  Wisconsin,  609 703  a 

V.  Watts,  7  Alabama,  703 294 

Massey  V.  Walker,  8  Alabama,  167 418 

j\Iatheny  v.  Galloway,  12  Smedes  &  Marshall,  475 697 

Matheson  v.  Rutledge,  12  Richardson,  41 527 

Mathis  y.  Clark,  2  Mills' Const.  Ct.  456 679 

Matthews  v.  Ansley,  31  Alabama,  20 187,  420  a 

ih  Houghton,  11  Elaine,  377 708 

;;.  Sands,  29  Alabama,  136 69G 

Mattingly  v.  Boyd,  20  Howard  Sup.  Ct.  128         .         .         .     453,  665,  683,  700 
Maude  V.  Rodes,  4  Dana,  144  .........  5 

Maxfield  y.  Scott,  17  Vermont,  634 372 

]Maxwell  v.  McGee,  12  Cushing,  137 246 

May  w.  Baker,  15  Illinois,  89        .         .         .• 457,547 

Mayfield  v.  Cotton,  21  Texas,  1 743 

Mayhew  i\  Scott,  10' Pick.  54 517 

Me'acham  v.  McCorbitt,  2  Metcalf,  352     .         .         .         481,  551,  659,  660,  667 

Meade  v.  Smith,  16  Conn.  346 196 

Means  v.  Osgood,  7  Maine,  146 219 

Mears  v.  Winslow,  1  Smedes  &  Marshall  Ch'y,  R-  449  ...     221,  263 

Mechanics  &  Traders' Bank  1?.  Hodge,  3  Robinson  (La.),  373  .         .        512 

Meeker  v.  Sadders,  6  Iowa,  61 651 

— r.  Wilson,  1  Gallison,  419 223 

Megee  v.  Beirne,  39  Penn.  State,  50 5 

Meggs  V.  Shaffer,  Hardin,  65 405,  406 

Meldrum  v.  Snow,  9  Pick.  441 246 

Melton  V.  Troutman,  15  Alabama,  535 743 

Melville  V.  Brown,  1  Harrison,  363 225 

V. ,  15  Mass.  79 248 

Memphis  R.  R.  Co.  v.  Wilcox,  48  Penn.  State,  161 421 

Mense  v.  Osbern,  5  Missouri,  544 409 

Meriam  v.  Rundlett,  13  Pick.  511 708 

MerrlU  v.  Curtis,  18  Maine,  272 •         201,  308 

V.  Sawyer,  8  Pick".  397 258 

Mersereau  v.  Norton,  15  Johns.  179 248 

Messner  r.  Hutchins,  17  Texas,  597 133 

V.  Lewis,  20  Texas,  221 133,  200,  208 

Metcalf  y.  Clark,  41  Barbour,  45 81,193 

Meuley  v.  Zeigler,  23  Texas,  88      .         . 237 

]Middlebrook  v.  Ames,  5  Stewart  &  Porter,  158 49,  399 

Miere  v.  Brush,  4  Illinois  (3  Scammon),  21 144 

Millaudon  v.  Foucher,  8  Louisiana,  582 108 

Mill-Dam  Foundery  y.  Hovey,  21  Pick.  417     ....  .12 


Ixii 


INDEX  TO  THE   CASES   CITED. 


Miller  v.  Adsit,  16  Wendell,  335 

V.  Baker,  1  Metcalf,  27  . 

?;.  Clark,  8  Pick.  412      '     . 

V.  Hooe,  2  Cranch,  C.  C.  622 

V.  Hubbard,  4  Cranch,  C.  0.  451 

V.  McLain,  10  Yerger,  245    . 

V.  McMillan,  4  Alabama,  527    . 

V.  Richardson,  1  Missouri,  310 

V.  Sliackleford,  4  Dana,  264 

V.  Sharp,  3  Randolph,  41 


Milliken  v.  Loring,  37  Maine,  408 

Mills  V.  Block,  30  Barbour,  549        ..         . 

V.  Camp,  14  Conn.  219         ..         . 

V.  Findlay,  14  Georgia,  230     . 

V.  Stewart,  12  Alabama,  90 

Mims  V.  Parker,  1  Alabama,  421 

Minard  v.  Lawler,  26  Illinois,  301 

Minchin  v.  Moore,  11  Mass.  90  .-        .         . 

Mineral  Point  R.  R.  Co.  v.  Keep,  22  Illinois,  9 

MIngafr.  Zollicoffer,  1  Iredell,  278  . 

Mitchell  V.  Byrne,  6  Richardson,  171  . 

V.  Hinman,  8  Wendell,  667 

V.  Mattingly,  1  Metcalfe  (Ky.),  237 

V.  Merrill,  2  Blackford,  87 


Mobile  V.  Rowland,  26  Alabama,  498 
Mobley  v.  Lonbat,  7  Howard  (Mi.),  318 
Mock  V.  King,  15  Alabama,  66    . 
Monroe  v.  Bishop,  29  Georgia,  159 
V.  Cutter,  9  Dana,  93 


Montague  v.  Gaddis,  37  Mississippi,  453 
Moon  t^  Hawks,  2  Aikens,  390    . 

V.  Story,  2  B.  Monroe,  354     . 

Mooney  v.  Kavanaugh,  4  Maine,  277 
Moor  V.  Towle,  38  Maine,  133 
Moore  v.  Angiolette,  12  Martin,  532    . 
V.  Graves,  3  New  Hamp.  408 


— -  V.  Greene,  4  Humphreys,  299     . 

V.  Hawkins,  6  Dana,  289        ..         . 

V.  Holt,  10  Grattan,  284    . 

V.  Pillow,  3  Humphreys,  448 

V.  Spackman,  12  Sergeant  &  Rawle,  287 

V.  Stainton,  22  Alabama,  831 

V.  Tliayer,  10  Barbour,  258 ;  6  Howard  Pract 

porter,  176 

V.  Westervelt,  1  Bosworth,  387 

V.  Withenburg,  13  Louisiana  Annual,  22 


Moores  v.  White,  3  Grattan,  139 


R, 


SECTIDN 

.     367 

198 

.     285,  381 

474 

.     611 

706 

.     207 

464,  489,  572 

.     212,  213 

5 

.     630,  717 

225 

.     258 

33 

.     706,  720 

550,  583,  659 

.     624 

639 

79,  80 

•  .         .         .  10 

.     245,  535 

349, 367 

.     173,  732 

334 

.     516 

570 

.     494 

34  a 

.     321 

70  a 

.     254 

342 

.     288 

465, 646 

.         .         .408 

267 

.     589 

405,  406 

24,  63,  224,  453,  455 

481 

.     706 

452 

47 ;   3  Code  Re- 

433 
.     292 
158,  251 
.       81 


INDEX  TO  THE   CASES   CITED. 


Ixiii 


Morange  v.  Edwards,  1  E.  T>.  Smith,  414 
Moreland  v.  RufEn,  Minor,  18 
Morgan  v.  Avery,  7  Barbour,  656    . 

V.  Furst,  4  Martin,  N.  s.  116 

V.  Ide,  8  Gushing,  420 

V.  Johnson,  15  Texas,  568 

Morrill  v.  Brown,  15  Pick.  173 
Morris  v.  Ludlam,  2  H.  Black.  362      . 

V.  Penniman,  14  Gray,  220  . 

V.  Price,  2  Blackford,  457 

V.  Trustees,  15  Illinois,  266  . 

Morrison  v.  Blodgett,  8  New  Hamp.  238 

V.  Lovejoy,  6  Minnesota,  183 

—  V.  New  Bedford  Institution  for 

Moi-se  V.  Betton,  2  New  Hamp.  184 

V.  Hodsden,  5  Mass.  314 

V.  Holt,  22  Main,  180     . 

V.  Hurd,  17  New  Hamp.  246 

Morton  v.  Pearman,  28  Georgia,  323 

V.  Webb,  7  Vermont,  123 

Moser  v.  Maberry,  7  Watts,  12 

Mott  V.  Lawrence,  1 7  Howard  Pract.  R. 

V.  Smith,  2  Cranch,  C.  C.  33  . 

Moulton  V.  Chadborne,  31  Maine,  152 

V.  Chapin,  28  Maine,  505     . 

Mowrey  v.  Crocker,  6  Wisconsin,  326 
Moyer  v.  Lobengeir,  4  Watte,  390    . 
Muir  V.  Schenck,  3  Hill  (N.  Y.),  228 
Mulhall  V.  Quinn,  1  Gray,  105 
Munroe  v.  Cocke,  2  Cranch,  C.  C.  465 
V.  Luke,  19  Pick.  39     . 


Savin 


es,  7 


559 


Murray  v.  Cone,  8  Porter,  250     . 

V.  Gibson,  2  Louisiana  Annual,  311 

V.  Eldrldge,  2  Vermont,  388    . 


—  V.  Shearer,  7  Gushing,  333 


Murrell  v.  Johnson,  3  Hill  (S.  C),  12 
Myatt  V.  Lockhart,  9  Alabama,  91 
Myers  v.  Baltzell,  37  Penn.  State,  491 

V.  Beeman,  9  Iredell,  116 

— ■ —  V.  Lewis,  1  McMullan,  54 

V.  Myers,  8  Louisiana  Annual,  369 

V.  Perry,  1  Louisiana  Annual,  372 

V.  Urich,  1  Binney,  25    . 


Gray, 


267 


SECTIOK 

323 

.     216 

43,  47,  400 

339,  340 

246 

.       95 

481 

.     723 

506 

.     176 

144, 213 

381,  387 

100,  183  a 

.     713 

299 

327  a 

482 

198,  256,  392 

34  a 

.     701 

679 

.     100 

731 

.     344 

381,  388,  393 

.     605 

711 

.     608 

613 

.     104 

241 

93,  131 

224 

.     262 

323 

509,  650 

525,  654 

.     672 

588 

93,  131 

193, 251 

.     318 

711 


N. 


Nailor  v.  French,  4  Yeates,  241* 
Nancarrow  v.  Young,  6  Martin,  662 


63 
326 


Ixiv  INDEX  TO   THE   CASES   CITED. 

SECTION 

Napper  v.  Noland,  9  Porter,  218 108 

Nashr.  Brophy,  13  Metcalf,  476     .        ' 674 

V.  Farrington,  4  Allen,  157 195,  244  a 

Nashville  Bank  v.  Ragsdale,  Peck,  296 244 

Nason  v.  Esten,  2  Rhode  Island,  337 193 

Nathan  v.  Giles,  5  Taunton,  558 223,  533,  700 

Naylor  v.  Dennie,  8  Pick.  198 256 

Neally  v.  Ambrose,  21  Pick.  185 640 

Neilson  v.  Scott,  1  Rice's  Digest  of  S.  C.  Reports,  80  .        .        .        ..        .     650 

Nelson  v.  Conner,  6  Robinson  (La.),  339 609  a 

Nesbitt  V.  "Ware,  30  Alabama,  68 •        .        .     645 

Nesmith  v.  Drum,  8  Watts  &  Sergeant,  9 528 

Neuer  v.  O'Fallon,  18  Missouri,  277 487,  514 

Nevins  v.  Rockingham  M.  F.  I.  Co.,  5  Foster,  22 669 

Newby  v.  Hill,  2  Metcalfe  (Ky.),  530 614 

Newell  V.  Adams,  1  D.  Chipman,  346       . 578 

V.  Blair,  7  Michigan,  103 650 

V.  Ferris,  16  Vermont,  135 671 

New  England  M.  I.  Co.  v.  Chandler,  16  Mass.  275 490 

New  Hampshire  I.  F.  Co.  v.  Piatt,  5  New  Hamp.  193      .        .        .        .        481 
New  Haven  Saw-Mill  Co.  v.  Fowler,  28  Conn.  103     .         .        .         .     13  a,  508 

Newlin  V.  Scott,  26  Penn.  State,  102 662 

New  Orleans  v.  Garland,  11  Louisiana  Annual,  438 108 

Canal  &  Banking  Co.  v.  Comly,  1  Robinson  (La.),  231       .  45 

Newton  V.  Adams,  4  Vermont,  437 200,  256 

Nichols  V.  Patten,  18  Maine,  231 210,  256,  423 

u.  Schofield,  2  Rhode  Island,  123 464,557 

V.  Valentine,  36  Maine,  322 244  ft,  290 

Noble  V.  Merrill,  48  Maine,  140 658  6 

V.  Smith,  6  Rhode  Island,  406 605 

Nolen  V.  Crook,  5  Humphreys,  312 533 

Nolle  V.  Thompson,  3  Metcalfe  (Ky.),  121 162  a,  729 

Norcross  v.  Benton,  38  Penn.  State,  217 684 

Norris  v.  Bridghara,  14  Maine,  429 393 

V.  Burgoyne,  4  California,  409 667 

1'.  Hall,  18  Maine,  332  . 665,  708 

V.  Watson,  2  Foster,  364 249 

Norton  v.  The  People,  8  Cowen,  137 367 

Noyes  V.  Brown,  33  Vermont,  431        ........     614 

Nugent  \).  Opdyke,  9  Robinson  (La.),  453        ...         .  607,  630,  717 

Nutter  V.  Connctt,  3  B.  Monroe,  199 221,263 

Nye  V.  Liscomb,  21  Pick.  263  .........         474 

o. 

Oakey  v.  M.  &  A.  Railroad  Co.,  13  Louisiana,  570 653 

O'Brien  v.  Daniel,  2  Blackford,  290 96 

V.  Liddell,  10  Smedes  &  Marshall,  371  ....     624,  627 


INDEX  TO   THE   CASES   CITED.  Ixv 

SECTION 

O'Brien  V.  ISI orris,  16  Maryland,  122 245 

O'Connor  v.  O'Connor,  2  Grant,  245 697 

Odiorne  v.  Colley,  2  New  Hamp.  66     .         .         .     256,  267,  269,  290,  353,  356 

Oeters  v.  Aehle,  31  Missouri,  380 300 

Offutt  V.  Edwards,  9  Robinson  (La.),  90      .         .         .       52,  158,  175,  176,  408 

Ogilvie  V.  Washburn,  4  G.  Greene,  548 38 

O'Grady  v.  Julian,  34  Alabama,  88 730  a,  745 

Ohio  Life  Lis.  &  Tr.  Co.  v.  Urbana  Ins.  Co.,  13  Ohio,  220         ..         .         219 

Ohors  V.  Hill,  3  M'Cord,  .338 249 

Oldham  y.  Ledbetter,  1  Howard  (Mi.),  43       .         .         .         576,696,711,717 

: — y.  Scrivener,  3  B.  Monroe,  579      ....     221,222,229,267 

Olin  V.  Figeroux,  1  McMullan,  203 706 

Oliver  Jordon,  The,  2  Curtis,  414 251 

Oliver  V.  Atkinson,  2  Porter,  546 659 

V.  C.  &  A.  R.  R.  Co.,  17  Illinois,  587 472 

V.  Gwin,  17  Louisiana,  28 .         •         318 

V.  Lake,  3  Louisiana  Annual,  78 245,517 

r.  Smith,  5  Mass.  183 511 

y.  Wilson,  29  Georgia,  642 48,  52 

Olney  v.  Shepherd,  8  Blackford,  146 204 

O'Neal  w.  Owens,  1  Haywood  (N.  C),  362 124 

Ormondw.Moye,  11  Iredell,  564 588,592 

Ormsbee  w.  Davis,  5  Rhode  Island,  442 656 

Ormsby  v.  Anson,  21  Maine,  23 638 

Orr  V.  McBride,  2  Carolina  Law  Repository,  257         ...         .     251,  508 

Osborne  v.  Jordan,  3  Gray,  277 667 

Overton  v.  Hill,  1  Murphey,  47 506 

Owen  u.  E^tes,  5  Mass.  330 517 

Owens  i;.  Starr,  2  Littell,  230 117,185 

Owings  V.  Norwood,  2  Harris  &  Johnson,  96    .....         .         222 

Oystead  v.  Shed,  12  Mass.  506 249 

P. 

Paddock  v.  Palmer,  19  Vermont,  581 396 

Paget).  Belt,  17  Missouri,  263 100 

V.  Crosby,  24  Pick.  211    ...        1 527 

V.  Ford,  2  Smedes  &  Marshall,  266 132 

V.  Generes,  6  Louisiana  Annual,  549 205 

V.  Long,  4  B.  Monroe,  121 338 

V.  Thompson,  43  New  Hamp.  373 60S 

V.  Thrall,  11  Vermont,  230 345,  372 

Paihles  v.  Roux,  14  Louisiana,  82    .         • 318 

Paine  v.  Mooreland,  15  Ohio,  435 437,  448 

Palmer  v.  Hooks,  1  Ld.  Raymond,  727 ''02 

V.  Thayer,  28  Conn.  237 212,213,218 

Pancost  V.  Washington,  5  Cranch,  C.  C.  507 433 

Paradise  v.  F,  &  M.  Bank,  5  Louisiana  Annual,  710     .        .        •        .     193,  251 


Ixvi 


INDEX  TO  THE   CASES   CITED. 


Paramore  v.  Pain,  Croke  Eliz.  598 

Park  V.  Matthews,  36  Penn.  State,  28 ;  2  Grant, 

Parker  v.  Danforth,  16  Mass.  299 

V.  Farr,  2  Browne,  331 

V.  Guillow,  10  New  Hamp.  103 

i\  Kinsman,  8  Mass.  436 

V.  Porter,  6  Louisiana,  169 

Parks  V.  Ciishman,  9  Vermont,  320. 

;;.  Hadley,  9  Vermont,  320 

Parmele  v.  Johnston,  15  Louisiana,  429    . 

V.  M'Laughlin,  9  Louisiana,  436     . 

Parmenter  v.  Childs,  12  Iowa,  22      .         .         . 
Parmer  v.  Ballard,  3  Stewart,  326 
Parsons  v.  Strong,  13  Vermont,  235 
Paschall  v.  Whitsett,  11  Alabama,  472 
Patrick  v.  Montader,  13  California,  434  . 
Patten  v.  Wilson,  34  Penn.  State,  299 
Patterson  v.  Harland,  12  Arkansas,  158  . 

V.  McLaughlin,  1  Cranch,  C.  C.  352 

V.  Perry,  5  Bos  worth,  518  ;  10  Abbott 

Patton  V.  Smith,  7  L-edell,  438    . 
Paul  V.  Paul,  10  New  Hamp.  117     . 

V.  Slason,  22  Vermont,  231 

Pawley  v.  Gains,  1  Tennessee,  208  . 
Paxton  V.  Steckel,  2  Penn.  State,  93    ■ 
Payne  v.  Mobile,  4  Alabama,  333 
V.  Snell,  3  Missouri,  409   . 


136 


Peace  v.  Jones,  3  Murphey,  256 
Peacock  v.  Pembroke,  4  Maryland,  280 

V.  Wildes,  3  Halsted,  179 

Pearce  v.  Baldridge,  7  Arkansas,  413 
Pearson  v.  Gayle,  11  Alabama,  278 
Pearsons  v.  Tincker,  36  Maine,  384     . 
Peck  V.  Barnum,  24  Vermont,  75     . 

V.  Sill,  3  Conn.  157      . 

V.  Walton,  25  Vermont,  33      . 

V.  Webber,  7  Howard  (Mi.),  658 

Peeler  v.  Stebbins,  26  Vermont,  644 

Peirce  i'.  Partridge,  3  Metcalf,  44 

Peiser  v.  Cushman,  13  Texas,  390    . 

Pellman  v.  Hart,  1  Penn.  State,  263    . 

Penhallow  v.  Dwight,  7  Mass.  34      . 

Pennell  v.  Grubb,  13  Penn.  State,  552 

Pennlman  v.  Kuggles,  6  New  Hamp.  166 

Penobscot  Boom  Corporation  v.  Wilkins,  27  ISIaine,  345 

People  V.  Cameron,  7  Illinois  (2  Giluian),  468  . 

V.  Hubbard,  24  Wendell,  3G9    . 


Pract.  R. 


82 


SECTIOS 

.     723 

490 
.     562,  563 

223,  226,  454 

.     566 

453 

252  a 

244,  247 

.     497 

107 

.     246 

.      658  e 

697,  713 

394 

.     434 

275 

.     604 

539 

.       81 

671 

.     541 

463,  541,  548 

.     203 

506 

198,  204 

612,  C67 

.     318 

557 

.     247 

81 

.     208 

120 

.     374 

476,  562 

.     282 

58^ 

223,  224 

194 

.     282 

134 

.     608 

249 

686,  687 

487 

.     390,  392 

224,  317,  331 

.     200 


INDEX  TO   THE   CASES  CITED, 


People  V.  Johnson,  14  Illinois,  342 

V.  Kecorder,  6  Hill  (N.  Y.),  429 

V.  Tioga  C.  P.,  19  Wendell,  73 

Perine  v.  George,  5  Alabama,  644    . 
Perkins  v.  Norvell,  6  Humphreys,  151 

t'.  Parker,  1  Mass.  117 

Perley  v.  Foster,  9  Mass.  112      . 
Perminter  v.  M'Daniel,  1  Hill  (S.  C),  267 
Perrin  v.  Claflin,  11  Missouri,  13 

V.  Leverett,  13  Mass.  128 

Peny  v.  Coates,  9  Mass.  537        . 

V.  Thornton,  7  Rhode  Island,  15     . 

Peter  v.  Butler,  1  Leigh,  285       . 
Petei's  V.  League,  13  Maryland,  58 
Pettit  V.  Mercer,  8  B.  Monroe,  61 
Pettes  V.  Marsh,  15  Vermont,  454 
V.  Spalding,  21  Vermont,  && 


154 


Pfoutz  V.  Comford,  36  Penn.  State,  420 
Phelps  V.  Campbell,  1  Pick.  59    . 

V.  Coggeshall,  13  Louisiana  Annual,  440 

V.  Gilchrist,  8  Foster,  266 


V.  Young,  1  Illinois  (Breese),  255 

Phihps  V.  Hines,  33  Mississippi,  163     . 
PhiUips  V.  Bridge,  11  Mass.  242 

V.  Hall,  8  Wendell,  610 

V.  Orr,  11  Iowa,  283    . 


156 


508 


Pickering  v.  Wendell,  20  New  Hamp.  222 
Picquet  v.  Swan,  4  Mason,  443 
Pierce  v.  Carleton,  12  Illinois,  358 

V.  Jackson,  6  Mass.  242 

V.  Strickland,  2  Story,  292 

Pierse  v.  Smith,  1  Minnesota,  82      . 
Pierson  v.  Hovey,  1  D.  Chipman,  51    . 

r.  Robb,  4  Illinois  (3  Scammon),  139 

•  V.  Weller,  3  Mass.  564     . 

Pike  V.  Pike,  4  Foster,  384       ...         . 
Pillsbury  v.  Small,  19  Maine,  435        ..         . 
Pioneer  Printing  Co.  v.  Sanborn,  3  Minnesota,  413 
Piper  V.  Piper,  2  New  Hamp.  439 
Piscataqua  Bank  v.  Turnley,  1  Miles,  312 
Pitts  V.  Burroughs,  6  Alabama,  733 

y.  "Mower,  18  Maine,  361  .... 

Planters'  Bank  v.  Byrne,  3  Louisiana  Annual,  687 

■ V.  Walker,  3  Smedes  &  Marshall,  409 

Planters  &  Merchants'  Bank  v.  Andrews,  8  Porter,  404 

V.  Leavens,  4  Alabama,  753 

Piatt  V.  Brown,  16  Pick.  553   . 


525, 


170, 


245 
583. 


206 


79 


174, 


344, 


290, 


175, 


373, 

347, 


499,  539, 
659,  696, 


208,  209, 


.       463, 

607, 

113,  127, 


Ixvii 

SECTION 

583, 659 

101 

.     610 

659 

222,  433 

708 

367,  371 

121 

.     196 

236 

.     481 

457,  502 

.       15 

.      658  e 

178,  726 

379 

.     561 

62 

.     311 

176 

376,  377 

96 

.     317 

357,362 

.   ,381 

53  a 

247,  489 

659,  683 

697,  711 

244 

361,  362 

100 

351, 353 

224 

.     490 

275 

.     428 

659 

500,  541 

10 

52,  742 

630,  717 

.     141 

212 

147,  697 

471,472 

200 


Ixviii 


INDEX   TO   THE   CASES   CITED 


Plammer  v.  Rundlett,  42  Maine,  365 

Plurapton  V.  Cook,  2  A.  K.  Marshall,  450 

Poage  V.  Poage,  3  Dana,  579       . 

Poe  V.  St.  Mary's  College,  4  Gill,  499      . 

Pogue  V.  Joyuer,  7  Arkansas  (2  English),  462 

Pollard  V.  Ross,  5  Mass.  319     . 

Policy  V.  Lenox  Iron  Works,  4  Allen,  329 

Pomroy  v.  Ivingsley,  1  Tyler,  294    . 

V.  Parmlee,  9  Iowa,  140 

Pond  V.  Griffin,  1  Alabama,  678       . 
Pool  V.  Webster,  3  Metcalfe  (Ky.),  278 
Poole  V.  Symonds,  1  New  Haiup.  289      .         . 
Pope  V.  Hunter,  13  Louisiana,  306 
Porter  v.  BuUard,  26  Maine,  448     . 

V.  Byrne,  10  Indiana,  146 

V.  Earthman,  4  Yerger,  353  . 

V.  Hildebrand,  14  Penn.  State,  129 

V.  Stevens,  9  Gushing,  530    . 


Posey  V.  Buckner,  3  Missouri,  413 

Poteet  V.  Boyd,  10  Missouri,  160     . 

Potter  V.  Hall,  3  Pick.  368  .... 

V.  Kitchen,  6  Abbott  Pract.  R.  374,  note 

Powell  V.  Aiken,  18  Louisiana,  321     . 

V.  McKee,  4  Louisiana  Annual,  108 

— ^: —  V.  Matthews,  10  Missouri,  49    • 

V.  Sammons,  31  Alabama,  552 

Powers  V.  Hurst,  3  Blackford,  229 

Poydras  v.  Delaware,  13  Louisiana,  98    . 

Pratt  V.  Wheeler,  6  Gray,  520    . 

Prentiss  v.  Bliss,  4  Vermont,  ol3     . 

Prescott  V.  Hull,  1 7  Johns.  284  ... 

V.  Parker,  4  Mass.  170 

Pressley  17.  McDonald,  1  Richardson,  27      . 
Pressnall  v.  Mabry,  3  Porter,  105    . 
Prewitt  V.  Carmichael,  2  Louisiana  Annual,  943 
Price  V.  Bradford,  4  Louisiana,  35   . 

V.  Brady,  21  Texas,  614      . 

V.  Higgins,  1  Littell,  274 

V.  Mazange,  31  Alabama,  701     . 

V.  Merritt,  13  Louisiana  Annual,  526 

Pringle  v.  Black,  2  Dallas,  97      . 

Proseus  v.  Mason,  12  Louisiana,  16 

Proskey  v.  West,  8  Smedes  &  Marshall,  711 

Providence  County  Bank  v.  Benson,  24  Pick.  204 

Puffer  V.  Graves,  6  Foster,  258   . 

Pulliam  u.  Aler,  15  Grattan,  54 

Purcell  V.  Steele,  12  Illinois,  93  ... 


SEcnoH 

.  465 

128 

.  108 

517 

.  335 

506 

210,  258,  290 

423,  428 

.  193 

221,  229,  263 

93,  94 

290,  367 

.  141 

610,  614 

.  237 

26S 

.   10 

461,659 

.   11 

323 

.  252 

67 

.  245 

193 

.   73 

545,  659,  689  a 

.  108 

611 

.  237 

244,  251,  505 

607,  630,  717 

622,  665 

.  247 

545,  583,  659 

.   10 

599 

.   481,  588 

459,  663,  673 

.  654 

.  25,  95 

...   81 

460 

.   126,  145 

604 

.  707 

674 

.  329 


INDEX   TO  THE   CASES   CITED. 


Ixix 


SECTIOK 

Putnam,  ^xjortrte,  20  Alabama,  592 418 

V.  Hall,  3  Pick.  445 219,284 

Pyle  V.  Cravens,  4  Littell,  17 442 


Q. 


Quarles  v.  Porter,  12  Missouri,  76 

V.  Robinson,  1  Chandler,  29 

Quigg  V.  Kittredge,  18  New  Hamp.  137 
Quine  v.  Mayes,  2  Robinson  (La.),  510 


R. 

Raiguel  v.  McConn'ell,  25  Penn.  State,  362 

Ralph  V.  Nolan,  1  Rice's  Digest  of  S.  C.  Reports,  77 

Rand  v.  Sargent,  23  Maine,  326 


V.  White  Mountain  R.  R.,  40  New  Hamp. 
Randolph  v.  Henslip,  11  Iowa,  37 
Rankin  v.  Simonds,  27  IHInois,  352 
Ranlett  v.  Blodgett,  1 7  New  Hamp.  298      . 
Ransom  v.  Halcott,  18  Barbour,  56 
Raspillier  v.  Brownson,  7  Louisiana,  231 
Rathbone  v.  Ship  London,  6  Louisiana  Annual, 
Raver  v.  Webster,  8  Iowa,  502     . 
Ray  V.  Underwood,  3  Pick.  302       . 
Rayne  v.  Taylor,  10  Louisiana  Annual,  726 
Raynes  v.  Lowell  I.  B.  Society,  4  Cushing,  343 
Rea  0.  Lewis,  Minor,  382 
Read  v.  Sprague,  34  Alabama,  101. 

V.  Ware,  2  Louisiana  Annual,  498 

Reagan  v.  Kitchen,  3  Martin,  418    . 

V.  Pacific  Railroad,  21  Missouri,  30 

Reddick  v.  Smith,  4  Illinois  (3  Scammon),  451 
Reding  v.  Ridge,  14  Louisiana  Annual,  36 
Redus  V.  Wofford,  4  Smedes  &  Marshall,  579 
Redwood  v.  Consequa,  2  Browne,  62     . 
Reed?;.  Bank  of  Ky.,  5  Blackford,  227    . 
V.  Ennis,  4  Abbott,  Pract.  R.  393 


79 


439 


-  V.  Howard,  2  Metcalf,  36 

—  V.  Perkins,  14  Alabama,  231 


Reeves  v.  Comly,  3  Robinson  (La.),  363 

V.  Johnson,  7  Halsted,  29 

Reid  V.  McLeod,  20  Alabama,  576 
Reidhar  v.  Berger,  8  B.  Monroe,  160 
Rei.^s  V.  Brady,  2  California,  132      . 
Rcinick  V.  Atkinson,  11  New  Hamp.  256 
Remmington  v.  Cady,  10  Conn.  44  . 
Renneker  v.  Davis,  10  Richardson  Eq.  289 
Reynolds  v.  Bell,  3  Alabama,  57      . 


586,  589 

104 

464, 665 

318, 389 


.  481 
275 
.  198 
548 
.  662 
653,  658  a,  683,  689  a 
189,  189  a,  253  a 
190 
.  162 
317 
10,  173,  743 
474 
.  ■  .   67 
487 
.  729 
251 
25,  408 
335 
.  461,  659 
251,  505 
.  108 
.   86,  91,  221,  229 
14,  32 
123 
.  275 
248 
.  204 
45 
.  223 
564  a 
.   175,  178 
417 
.  394 
248 
.  453 
418 


Ixx 


INDEX  TO   THE   CASES   CITED. 


Reynolds  v.  Culbreath,  14  Alabama,  581 

V.  Jordan,  19  Georgia,  436 

Rhoads  v.  Woods,  41  Barbour,  471 

Rhode  Island  v.  Massachusetts,  12  Peters,  657     . 

Ex.  Bank  v.  Hawkins,  6  Rhode  Island, 

Rice  V.  Beers,  1  Rice's  Digest  of  South  Carolina  Rep 

V.  Wilkins,  21  Maine,  558        ...         . 

Rich  V.  Bell,  16  Mass.  294  .... 

V.  Reed,  22  Maine,  28 

V.  Waters,  22  Pick.  563      ...         . 

Richards  v.  Allen,  8  Pick.  405  .... 

V.  Daggett,  4  Mass.  534 

V.  Griggs,  16  Missouri,  416        .         . 

Richardson  v.  Gurney,  9  Louisiana,  285 

V.  Hickman,  22  Indiana,  244  .         . 

V.  Whiting,  18  Pick.  530  . 

Riddle  v.  Etting,  82  Penn.  State,  412      . 

Ridgway  v.  Smith,  17  Illinois,  33         .         .         . 

Ridley  v.  Ridley,  24  Mississippi,  648        .         .         . 

Riley  v.  Hirst,  2  Penn.  State,  346        . 

Rinchey  v.  Stryker,  28  New  York,  45      .         .         . 

Ripley  V.  Severance,  6  Pick.  474 

Risewick  v.  Davis,  1 9  Maryland,  82  .         .         . 

Risley  V.  Welles,  5  Conn.  431      . 

Rives  v.  AVilborne,  6  Alabama,  45  ... 

Rix  V.  Elliott,  1  New  Hamp.  184 

Robbins  v.  Bacon,  3  Maine,  346       .         .       ■ . 

Roberts  v.  Drinkard,  3  Metcalfe  (Ky.),  309 

Robertson  v.  Beall,  10  Maryland,  125      . 

V.  Forrest,  2  Brevard,  466  .         . 

V.  Roberts,  1  A.  K.  Marshall,  247 

V.  Scales,  1 3  Louisiana  Annual,  545 

Robeson  v.  Carpenter,  7  Martin,  N.  8.  30 

V.  M.  &  A.  Railroad  Co.,  13  Louisiana,  465 

Robinson,  Ex  parte,  21  Wendell,  672 

V.  Ensign,  6  Gray,  300 

V.  Hall,  3  Metcalf,  301      . 

V.  Holt,  39  New  Hamp.  557 

V.  Howard,  7  Cashing,  257 

V.  Mansfield,  13  Pick.  139   .         . 

V.  Mitchell,  1  Hamngton,  365 

V.  Rapelye,  2  Stewart,  86     . 

V.  Woelpper,  1  Wharton,  179  . 

Roby  V.  Labuzan,  21  Alabama,  60 
Rochefeller  v.  Hoysradt,  2  Hill  (N.  Y.),  616 
Rockwood  V.  Varnum,  17  Pick.  289    . 
Rodgers  i'.  Ilendsley,  2  Louisiana,  597     . 


SECTION 

172 

.     317 

297 

.       84 

.      658  e 

.       23 

303,  361 

.     309 

659 

.     551 

490 

.     195 

497,  607 

.     543 

711 

.     489 

673 

.       70 

436 

.     464,  515 

225 

.     465,  523 

59  a,  65 

,     465 

331 

.     561 

610 

.     551 

508 

221,  231,  255,  263 

696,  711 

.     525 

,         .  707 

.     660 

.  84,  100 

.     267 

560,  667,  674 

.     199 

506 

97,  357,  369,  392 

575 

.     653 

247 

.     667 

125 

.      263,  270 

602 


INDEX  TO   THE   CASES  CITED.  Ixxi 

SECTION 

Roelofson  v.  Hatch,  3  Michigan,  277 22 

Rogers  v.  Ellis,  1  Handy,  48 101 

V.  Fairfield,  36  Vermont,  641 

V.  Pitman,  2  Jones,  56  ...... 


.     269 

725 

351,  353,  382 

69 

.     123 

639  a,  642 

460,  658  a 

75 

.       52 

251, 509 

.     553. 

290 

.     146 

224,  435 


Rood  V.  Scott,  5  Vermont,  263  

Roosevelt  v.  Kellogg,  20  Johns.  208 

Root  V.  Monroe,  5  Blackford,  594 

Request  v.  Steamer  B.  E.  Clark,  13  Louisiana  Annual,  210     . 
Rose  I'.  Whaley,  14  Louisiana  Annual,  374 

Rosenfield  v.  Howard,  15  Barbour,  546 

Ross  V.  Clark,  32  Missouri,  296 

V.  Clarke,  1  ETallas,  354 

V.  M'Kinny,  2  Rawle,  227 

V.  Philbrick,  39  Maine,  29 

Roulhac  V.  Rigby,  7  Florida,  336 

Rowell's  case,  21  Vermont,  620  ;  6  Law  Reporter,  300   . 

Rudd  V.  Paine,  2  Cranch,  C.  C.  9 614 

Rundlet  v.  Jordan,  3  Maine,  47 463,  481,  541,  548 

Runlett  V.  Bell,  5  New  Hamp.  433 344,  363 

Runyan  v.  Morgan,  7  Humphreys,  210 71, 107 

Russ  V.  Butterfield,  6  Cushing,  242      .  * 204,  210  a,  424 

Russell  V.  Clingun,  33  Mississippi,  535 551 

V.  Convers,  7  New  Hamp.  343 594 

r.  Hinton,  1  Murphey,  468 679 

f.  Lewis,  15  Mass.  127 490,646,647 

V.  Tunno,  11  Richardson,  303 605 

i;.  Wilson,  18  Louisiana,  367 69 

Ryder  v.  Hathaway,  2  Pick.  298 199 

Ryon  V.  Bean,  2  Metcalfe  (Ky.),  137 112 

S. 

Sackett  r.  M'Cord,  23  Alabama,  851 173 

Saffaracus  v.  Bennett,  6  Howard  (Mi.),  277 446 

Sampson  v.  Hyde,  16  New  Hamp.  492 634,  656,  683 

Samuelt'.  Brite,  3  A.  K.  Marshall,  317        .         .         .         .     ^    .         .116,139 
Sanders  v.  Hughes,  2  Brevard,  495  ....!.  154,  726 

Sanderson  v.  Edwards,  16  Pick.  144  ...       360,  423,  429,  431,  432 

Sandidge  v.  Graves,  1  Patton,  Jr.  &  Heath,  101 522 

Sands  u.  Matthews,  27  Alabama,  399 611 

Sanford  y.  Bliss,  12  Pick.  116 659,660,667 

v.  Boring,  12  California,  539 290,423 

Sangster  D.  Butt,  17  Indiana,  354 715 

Sargeant  v.  Andrews,  3  Maine,  199 708 

V.  Helmbold,  Harper,  219 10 

Sargent  r.  Carr,  12  Maine,  396 245,539 

Sartin  v.  Wier,  3  Stewart  &  Porter,  421 339 

Saulter  v.  Butler,  10  Georgia,  510 141 


Ixxii 


INDEX  TO   THE   CASES   CITED, 


Savage's  case,  1  Salkeld,  291  . 

Sawyer  v.  Arnold,  1  Louisiana  Annual,  315 

V.  Mason,  19  Maine,  49 

V.  Merrill,  6  Pick.  478   . 

V.  Thompson,  4  Foster,  510 

V.  Webb,  5  Iowa,  315     . 


Say  ward  v.  Drew,  6  Maine,  263       . 
Scales  V.  Swan,  9  Porter,  163      . 
Schacklett  &  Glyde's  Appeal,  14  Penn.  State,  326 
Scliatzill  V.  Bolton,  2  M'Cord,  478      . 
Scheib  V.  Baldwin,  22  Howard  Pract.  R.  278  . 
Schepler  v.  Garriscan,  2  Bay,  224        .         . 
.-.Schlater  v.  Broaddus,  3  Martin,  N.  s.  321 
Schleramer  v<  Myerstein,  19  Howard  Pract.  R.  412 
Scholfield  v.  Bell,  14  Mass.  40  .         .        . 

Scholefield  v.  Bradlee,  8  Martin,  495  . 
Sclioppenhast  v.  Bollman,  21  Indiana,  280 
Sclirimpfj;.  McArdle,  13  Texas,  368 
Schroeder,  Matter  of,  6  Cowen,  603 
Soliuyler  v.  Sylvester,  4  Dutcher,  487 
Schwab  V.  Gingerick,  13  Illinois,  697       ,* 
Schwein  v.  Sims,  2  Metcalfe  (Ky.),  209 
Scofield  V.  Sanders,  25  Vermont,  181 
Scott  V.  Brigham,  27  Vermont,  561      • 

I'.  Crane,  1  Conn.  255     .... 

V.  Hill,  3  Missouri,  88         ...         . 

V.  McMillan,  1  Littell,  302      . 

V.  Macy,  3  Alabama,  250    .... 

V.  Manchester  Print  Works,  44  New  Hamp 

V.  Ray,  18  Pick.  360  .... 

V.  Whittemore,  7  Foster,  309 

Searcy  v.  Platte  County,  10  Missouri,  269  . 

Searle  v.  Preston,  33  Maine,  214     . 

Sears  v.  Gearn,  7  Howard  Pract.  R.  383     . 

Seay  v.  Greenwood,  21  Alabama,  491 

Sebor  v.  Armstrong,  4  Mass.  206  .         ,         . 

Seeley  v.  Brown,  14  Pick.  177 

Self  V.  Kirkland,  24  Alabama,  275       . 

Senecal  v.  Smith,  9  Robinson  (La.),  418  . 

Sessions  v.  Jones,  6  Howard  (Mi.),  123 

V.  Stevens,  1  Florida,  233 

Sevier  v.  Throckmorton,  33  Alabama,  512 
Sewall  V.  Franklin,  2  Porter,  493     . 

V.  ]\Iattoon,  9  Mass.  535    . 

V.  Nicholls,  34  Maine,  582     . 

Seward  v.  Hoflin,  20  Vermont,  144      . 
Sewell  V.  Savage,  1  B.  Monroe,  260 


507 


SEcnoM 

702,  708 
.  107 
388,  389,  392,  395 
.  199 
474 
641,  658  d 
651,  657,  667 
.  633 
224,  229 
.  670 
.  191  a 
.  245 
318 
406  a 
246 
.  251,  453 
697 
.  129,  737 
49 
.  331 
654 
.  839 
.  ..  537 
.  244  a,  479 
306 
.  689 
225 
.  113,147 
239 
.  656 
372,  381,  386,  389 
.  409 
227 
.  248 
157,  176 
.  634,  656 
288 
,  686,  689 
154,  158,  726,  732 
.  S36 
708 
.  654 
333 
.  309,  311 
245 
.  714,  717 
221,  263 


INDEX   TO  THE   CASES  CITED. 


Sewell  V.  Sowles,  13  Vermont,  171  . 
SejTnour  v.  Ki'amer,  5  Iowa,  285 
Shaffer  v.  Mason,  29  Howard  Praet.  K,.  55 
Sharp  V.  Clark,  2  Mass.  91   . 
Sharpe  v.  Hunter,  16  Alabama,  765 
Shattuck  V.  Smith,  16  Vermont,  132  . 
Shaver  v.  White,  6  Munford,  110    . 
Shaw  V.  Bunker,  2  Metcalf,  376  . 
V.  Laughton,  20  Maine,  266     . 


Shearer  v.  Handy,  22  Pick.  417  . 
Sheets  V.  Culver,    14  Louisiana,  449 
Sheetz  v.  Hobensack,  20  Penn.  State,  412 
Sheldon  v.  Root,  16  Pick.  567  . 
V.  Simonds,  Wright,  724 


Shephard  v.  Butterfield,  4  Gushing,  425  . 
Sheppard  v.  Collins,  12  Iowa,  570        .         . 
SheiTod  V.  Davis,  17  Alabama,  312  . 
Shetler  v.  Thomas,  16  Indiana,  223     . 
Shewell  V.  Keen,  2  AVharton,  332    . 
Shinn  v.  Zimmerman,  3  Zabriskie,  150        . 
Shipman  v.  Woodbury,  2  Miles,  67 
Shipp  V.  Davis,  Hardin,  65  ... 

Ship  Robert  Fulton,  1  Paine,  620    . 
Shivers  t>.  Wilson,  5  Harris  &  Johnson,  130 
Shockley  v.  Davis,  17  Georgia,  175 
Short  V.  jVIoore,  10  Vermont,  446 
Shove  V.  Dow,  13  Mass.  529     . 
Shrewsbury  v.  Pearson,  1  M'Cord,  331 
Shriver  v.  Harbaugh,  37  Penn.  State,  399 
Shuffw!  Morgan,  9  Martin,  592    . 
Shugart  v.  Orr,  5  Yerger,  192 
Shultz  V.  Morrison,  3  Metcalfe  (Ky.),  98     . 
Shumway  v.  Rutter,  8  Pick.  443 
Shuttlesworth  v.  Noyes,  8  Mass.  229    . 
Sias  V.  Badger,  6  New  Hamp.  393   . 
Sibley  v.  Brown,  15  Maine,  185  . 

V.  Story,  8  Vermont,  15 

Sickman  v.  Lapsley,  13  Sergeant  &  Rawle,  224 
Sigourney  v.  Eaton,  14  Pick.  414     . 
Silverwood  v.  BeUar,  8  Wharton,  420 
Simons  v.  Jacobs,  15  Louisiana  Ajinual,  425 
Simpson  v.  Harry,  1  Devereux  &  Battle,  202 

V.  Minor,  1  Blackford,  229 

V.  Tippin,  5  Stewart  &  Porter,  208 

Sinclair  v.  Tarbox,  2  New  Hamp.  135 

Singleton  v.  Wofford,  4  Illinois  (3  Scammon),  576 

Skilknan  v.  Bethany,  2  Martin,  N.  3.  104 


151, 


189 


345, 


Ixxiii 

SECTION 

386 

.     465 

10 

507,  622 

157,  170 

.     531 

729 

.     634 

373,  385 

.     656 

585,  588 

.     671 

244 

.     679 

256 

327  a,  329 

411 

.     575 

499 

.     622 

62 

.     101 

251 

87,  90 

139 

.     247 

263,  264 

.     404 

189 

.     196 

.     49,  60 

.     176 

199 

.     247 

210 

199,  253  a 

3,  369,  379 

.     666 

263 

.     671 

45,  408 

.     489 

90 

.     524 

356,  379 

.       91 

245 


Ixxiv  INDEX   TO   THE   CASES   CITED. 

SECTION 

Skinner  v.  Moore,  2  Devereux  &  Battle,  138 588 

Skinner  v.  Oettinger,  14  Abbott  Pract.  R.  109 225 

u.  Stuart,  39  Barbour,  206     .         .         .         .•       .         .         .  •      .     290 

Skinnion  v.  Kelley,  18  New  York,  355 99 

Skipper-?;.  Foster,  29  Alabama,  330 624 

Skowhegan  Bank  v.  Farrar,  46  Maine,  293 481,  485 

Slate  V.  Barker,  26  Vermont,  647 257 

Slatter  v.  Tiernan,  6  Louisiana  Annual,  567  .         .         .         .         .         .       658  b 

Sledge  V.  Lee,  19  Georgia,  411 166 

u.  McLaren,  29  Georgia,  64 154,156,732 

Sloan  V.  Forse,  11  Missouri,  126  ........     440 

Small  V.  Hutchins,  19  Maine,  255 349 

Smead  v.  Chrisfield,  1  Handy,  442 28 

Smith  V.  Barker,  10  Maine,  458       .         . 620 

u.  Blatchford,  2  Indiana,  184     ....     576,581,588,701,717 

V.  B.  C.  &  M.  Railroad,  33  New  Hamp.  337  .         .         477,  478,  667,  682 

u.  Bradstreet,  16  Pick.  264 224 

V.  Brown,  14  New  Hamp.  67 381 

V. ,5  California,  118        .. 650 

V.  Bruner,  23  Mississippi,  508 659 

V.  Gaboon,  37  Maine,  281 552 

u.  Ghapman,  6  Porter,  365 550,583,659,697 

V.  Ghurch,  27  Vermont,  168 292 

u.  Cicotte,  11  Michigan,  383 189,253  a 

V.  Clarke,  9  Iowa,  241 526,  527,  533,  659 

V.  Gudworth,  24  Pick.  196 381 

V.  Davis,  1  Wisconsin,  447 550 

V.  Eakin,  2  Sneed,  456 154,  160,  1C6 

r.  Elliot,  3  Martin,  366 417 

V.  Gettinger,  3  Georgia,  140  .         .         .         .         .         .         .         275 

V.  Herring,  10  Smedes  &  Marshall,  518.         .         .         .         .         .399 

V.  Kennebec  &  Portland  R.  R.  Co.,  45  Maine,  547         ...        481 

V.  Leavitts,  10  Alabama,  92 215 

?;.  Low,  2  Iredell,  457 212 

V.  Luce,  14  Wendell,  237 84,  96,  100 

V.  McMicken,  3  Louisiana  Annual,  319 570 

V.  Mitchell,  31  Maine,  287 386,  394 

V.  Niles,  20  Vermont,  315 245 

V.  People's  Bank,  24  Maine,  185 235 

V.  Picket,  7  Georgia,  104 518 

V.  Posey,  2  Hill  (S.  C),  471 546 

r.  Sanborn,  6  Gray,  134 199 

v.  Smith,  24  Maine,  555 210 

V.  Stearns,  19  Pick.  20 670,685,688 

V.  Sterritt,  24  Missouri,  260 608 

V.  Story,  1  Humphreys,  420 62 

V. ,  4  Humphreys,  169         .         .         .     154,160,170,726,732,736 


IXDEX   TO  THE   CASES   CITED. 


Smith  17.  Wadleigh,  18  Maine,  95         ...         . 
Smoot  V.  Eslava,  23  Alabama,  659 

V.  Hart,  33  Alabama,  69  .... 

Snead  v.  Wegman,  27  Missouri,  176 

Snell  V.  Allen,  1  Swan,  208 

Somerville  v.  Brown,  5  Gill,  399      . 
Souberain  v.  Renaux,  6  Louisiana  Annual,  201 
South  Carolina  R.  R.  €o.  v.  McDonald,  5  Georgia,  531 
Spalding  v.  Imlay,  1  Root,  551 

— V.  Simms,  4  Metcalfe  (Ky.),  286 

Spaulding  v.  "Wallett,  10  Louisiana  Annual,  105 
Speak  r.  Kinsey,  17  Texas,  301        .... 

Spear  v.  Hubbard,  4  Pick.  143 

V.  King,  6  Smedes  &  Marshall,  276 

Speight  V.  Brock,  Freeman,  389  .... 

Speise  V.  M'Coy,  6  Watts  &  Sergeant,  485 
Spencer  v.  Blaisdell,  4  New  Hamp.  198      . 

V.  Deagle,  34  Missouri,  455 

V.  Williams,  2  Vermont,  209  ... 

Spengler  v.  Davy,  15  Grattan,  381 

Spicer  V.  Spicer,  23  Vermont,  678      . 

Spooner  v.  Rowland,  4  Allen,  485 

Sprague  v.  Hartford,  P.,  &  F.  R.  R.  Co.,  5  Rhode  Island 

V.  Wheatland,  3  Metcalf,  -1^6 

Spring  V.  Ayer,  23  Vermont,  516 

Sproule  V.  McXulty,  7  Missouri,  62 

Spruill  V.  Taylor,  5  Jones,  39      . 

St.  Amant  v.  De  Beixcedon,  3  Sandford,  Sup.  Ct.  703 

St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  421 

Stackpole  v.  Newman,  4  Mass.  85 

Stacy  V.  Stichton,  9  Iowa,  399    . 

Stadler  v.  Parmlee,  14  Iowa,  175     . 

Stamford  Bank  v.  Ferris,  17  Conn.  259 

Staniels  v.  Raymond,  4  Cushing,  314 

Stanley  v.  Drinkwater,  43  Maine,  468 

V.  Ogden,  2  Root,  259 

Stanton  i'.  Holmes,  4  Day,  87      . 
Staples  V.  Fail-child,  3  Comstock,  41t 

V.  Staples,  4  Maine,  532 

Starke  v.  Marshall,  3  Alabama,  44 
Starr  v.  Lyon,  5  Conn.  538 
r.  Moore,  3  McLean,  354 


State  V.  Beall,  3  Harris  &  M'Henry,  847 

V.  Berry,  12  Missouri,  376 

V.  Brownlee,  2  Speers,  519 

I'.  Foster,  10  Iowa,  435 

V.  Krebs,  6  Harris  &  Johnson,  31 


233 


79, 


Ixxv 

SECTION 

.     372 

630,  717 
.     516 
306 
222,  224 
689 
.       95 
.     79,  80 
.     512 
.     46,  64 
.     726 
560 
.     289 

105,  133,  416 

.     580 

520 

.     244 

74 

372,  381 

732,  732  a 

620,  701 

674 

80,  478 

384 

663,  671,  673 

525 

.     707 

400 

580,  589,  697 

639,  652 

.     101 

106,  550,  659 

.     259 

453,  479,  482 

.      353, 389 

10 

.       81 

.     88,  90 

464,  506, 515 

.  96,  187 

.     282 

222,  294 

.       33 

150 

.     525 


185 
247 


Ixxvi 


INDEX  TO  THE   CASES  CITED, 


State  V.  Lawson,  7  Arkansas  (2  English),  391 

V.  Manly,  15  Indiana,  8       .         .         . 

V.  Thomas,  19  Missouri,  613 

State  Bank  v.  Hinton,  1  Devereux,  397 
Steamboat  Napoleon  v.  Etter,  6  Arkansas,  103 
Stebbins  v.  Fitch,  1  Stewart,  180 

V.  Peeler,  29  Vermont,  289 

Stedman  v.  Vickery,  42  Maine,  132 
Steinmetz  v.  Nixon,  3  Yeates,  285 
Stephen  v.  Thayer,  2  Bay,  272   . 
Stephenson  v.  Doe,  8  Blackford,  508 
Stetson  V.  Cleneay,  14  Indiana,  453    . 
Steuart  v.  West,  1  Harris  &  Johnson,  536 
Stevens  v.  Briggs,  5  Pick.  177. 

. V.  Eames,  2  Foster,  568 

■ V.  Gwathmey,  9  Missouri,  636 

V.  Pugh,  12  Iowa,  430         ..         . 

V.  Stevens,  1  Ashmead,  190    . 

Stevenson  v.  Robbins,  5  Missouri,  18 
Stewart  v.  Martin,  16  Vermont,  397    . 

■ V.  Platts,  20  New  Hamp.  476     . 

Stickley  v.  Little,  29  Illinois,  315 

Stickney  v.  Davis,  16  Pick.  19 

Stiles  V.  Davis,  1  Black,  101 

Stille  V.  Layton,  2  Harrington,  149 

Stillman  v.  Isham,  11  Conn.  124 

Stills  V.  Harmon,  7  Gushing,  406 

Stockton  V.  Downey,  6  Louisiana  Annual,  581 

V.  Hall,  Hardin,  160 


Stone  V.  Anderson,  6  Foster,  506 

V.  Dean,  5  New  Hamp.  502 

V.  Llagruder,  10  Gill  &  Johnson,  383 

V.  Swift,  4  Pick.  389      . 

Stoney  v.  McNeill,  Harper,  156 
Stoutenburgh  v.  Vandenburgh,  7  Howard  Pract, 
Stratton  v.  Brigham,  2  Sneed,  420 
V.  Ham,  8  Indiana,  84 


Strock  V.  Little,  45  Penn.  State,  416  .         •  , 
Strong  V.  Hoyt,  2  Tyler,  208   . 

—  V.  Mitchell,  19  Vermont,  644  . 

V.  Smith,  1  Metcalf,  476       . 

j;.  Wheeler,  5  Pick.  410 

Strong's  Exr.  v.  Bass,  35  Penn.  State,  333 
Strout  V.  Bradbury,  5  Maine,  313 
Stubblefield  v.  Hagerty,  1  Alabama,  38  . 
Sturges  V.  Kendall,  2  Louisiana  Annual,  565 
Sturtevant  v.  Robinson,  18  Pick.  175 


R, 


8ECTIOW 

244 

244  a 

175 

.     122 

130 

697,  711 

479 

465,  650 

211 

.     221 

414 

.     588 

557,  589 

.     254 

379,  380 

653,  655, 665 

.      615  a 

.     608 

106, 115 

194  a 

373,  396 

658  a 

197 

290,453 

714 

.     493 

501 

205,  256 

630,  717 

.     225 

.481,566,  588 

.     696 

734 

112,  144,  421 

248 

.       62 

499 

.       10 

374 

595, 685 

247,  452 

.     278 

672, 683 

267,  290,  371 

576 

658  6 

597,  677 


INDEX  TO  THE  CASES  QTED. 


Ixxvii 


Summers  v.  Glancey,  3  Blackford,  361 

Sumpter  v.  Wilson,  1  Indiana,  144 

Suydam  v.  Huggeford,  23  Pick.  465     . 

Swagar  v.  Pierce,  3  Louisiana  Annual,  435 

Swain  v.  Mizner,  8  Gray,  182      . 

Swamscot  Machine  Co.  v.  Partridge,  5  Foster,  369  . 

Swan  V.  O'Fallon,  7  Missouri,  231        . 

Swayze  v.  Doe,  13  Smedes  &  Marshall,  317 

Sweeny  v.  Allen,  1  Peun.  State,  380 

Sweringen  v.  Eberius,  7  Missouri,  421 

Swett  0.  Brown,  5  Pick.  178        . 

— '■ —  V.  Ordway,  23  Pick.  266 

Swift  V.  Crocker,  21  Pick.  241     . 

Swisher  v.  Fitch,  1  Smedes  &  Marshall,  541 

Switzer  v.  Carson,  9  Missouri,  740 

Symons  v.  Northern,  4  Jones,  241    . 

Syracuse  City  Bank  v.  Coville,  19  Howard  Pract.  R.  385 


Taber  v.  Nye,  12  Pick.  105      . 
TafFts  V.  Manlove,  14  California,  47     . 
Taintor  v.  Williams,  7  Conn.  271     . 
Talbot  V.  Harding,  10  Missouri,  350     . 

V.  Pierce,  14  B.  Monroe,  195 

Talbott  V.  Tarlton,  5  J.  J.  Marshall,  641 

Taliaferro  v.  Lane,  23  Alabama,  369    . 

Tallman  v.  Bigelow,  10  Wendell,  420 

Tamm  v.  Williams,  2  Chitty's  R.  438  ;  s.  C  3  Douglass,  281 

Tarns  V.  Bullitt,  35  Penn.  State,  308    . 

Tappan  v.  Harrison,  2  Humphreys,  172  • 

Tarbell  v.  Bradley,  27  Vermont,  535 

V.  Dickinson,  3  Cushing,  345        .... 

Taylor  v.  Biiriington  &  M.  R.  R.  Co.,  5  Iowa,  114 

V.  Carryl,  24  Penn.  State,  259 ;  8.  c.  20  Howard  S 

V.  Cheever,  6  Gray,  146  .... 

V.  Drane,  13  Louisiana,  62  .... 

V.  Emery,  16  New  Hamp.  359 

V.  Gardner,  2  Washington  C.  C.  488   . 

V.  Gillian,  23  Texas,  508  .... 

V.  Jones,  42  New  Hamp.  25  .... 

• V.  Knox,  1  Dallas,  158     . 

V.  L^^lch,  5  Gray,  49 


—  V.  Mixter,  11  Pick.  341  .         . 

—  V.  Myers,  34  Missouri,  81      .         .         . 

—  V.  Nichols,  19  Vermont,  104    . 

—  II.  Phelps,  1  HaiTis  &  Gill,  492     . 

—  r.  Ricards,  9  Arkansas  (4  Enghsh)  378 


SECTIOIf 

.     123 
...         150 

228,  262,  415 

10 

.     200 

665,  669,  685 

.     409 

443 

.      620,  624 

433 

251,  270,  453,  540 
595 
.     280 
594 
.     409 
112,  421 
.     227 


221, 


Ct 


551 

255  a,  256,  263 

256,  423,  428 

.      231,  455 

419 

.      659,  660 

81 

.     100 

473 

.     707 

221,  229 

.       10 

311 

.      469, 594 

583      223,  251 

.       35 

24 

.     265 

686 

481, 509  a 

194, 199 

63 

612 

236,  237,  239 

74 

.     381 

706 

.     131,  399 


Ixxviii 


INDEX   TO   THE   CASES   CITED 


Taylor  v.  Royal  Saxon,  1  Wallace,  Jr.  311 

V.  Smith,  1 7  B.  Monroe,  536 

Tazewell  v.  Barrett,  4  Hening  &  Munford,  259 
Temple  v.  Cochran,  13  Missouri,  116 
V.  Hooker,  6  Vermont,  240 


Tenipleman  v.  Fauntleroy,  3  Randolph,  434    . 
Terry  v.  Lindsay,  3  Stewart  &  Porter,  317 
Tevis  V.  Hughes,  10  Missouri,  380    . 
Thacher  v.  Bancroft,  15  Abbott  Pract.  R.  243 

V.  GofF,  13  Louisiana,  360 

V.  Powell,  6  Wheaton,  119     . 

Thatcher  v.  Miller,  11  Mass.  413      . 
Thayer  v.  Hunt,  2  Allen,  449      . 

V.  Hutchinson^  13  Vermont,  504 

V.  Sherman,  12  Mass.  441 

V.  Southwick,  8  Gray,  229 

V.  Tyler,  5  Allen,  94        .        .        . 

V. — ,  10  Gray,  164  ..         . 


V.  Willet,  5  Bosworth,  344  ;  9  Abbott  Pract, 

Thomas  v.  Goodwin,  12  Mass.  140 
V.  Hopper,  5  Alabama,  442 


V.  Lusk,  13  Louisiana  Annual,  277 

Thompson,  Matter  of,  1  Wendell,  43 

V.  Allen,  4  Stewart  &  Porter,  184 

V.  Brown,  17  Pick.  462       . 

■ V.  Carper,  11  Humphreys,  542 

V,  Chambers,  12  Smedes  &  Marshall,  488 

V.  Culver,  15  Abbott  Pract.  R.  97  ;  38 


Pract.  R..  286 

t,.  Marsh,  14  Mass.  269       . 

V.  Rose,  16  Conn.  71       . 

V.  Shelby,  3  Smedes  &  Marshall,  296 

V.  Stevens,  10  Maine,  27 

V.  Stewart,  3  Conn.  171. 

V.  Taylor,  13  Maine,  420 

V.  Towson,  1  Harris  &  McHenry,  504 

■ V.  Wallace,  3  Alabama,  132    . 

Thorn  v.  Woodruff,  5  Arkansas,  55       . 
Thorndike  v.  DeWolf,  6  Pick.  120  .         . 

Thorne  v.  Matthews,  5  Cushing,  544    . 
Thornhill  v.  Christmas,  11  Robinson  (La.),  201 
Thornton  o.  Winter,  9  Alabama,  613 

V.  Wood,  42  Maine,  282  . 

Thurneyssen  v.  Vouthier,  1  Miles,  422 
Thurston  v.  Huntington,  17  New  Hamp.  438  . 
_Tilil)itts  V.  Townsend,  15  Abbott  Pract.  R.  221     . 
Tiernan  v.  Murrah,  1  Robinson  (La.),  443 


R. 


325 


8ECTIOW 

.     223 

95 

.     665 

409 

.     289 

665 

.     496 

113,  147 

.     433 

136 

.       84 

216,217 

.      381,  385 

367 

.      464,  515 

548,  667 

.     494 

697 

.     225 

523 

.      457,  684 

570 

.  41,  58,  65 

453,  662,  697,  711 

.     251 

10 

.     108 

Barbour,  442 ;  24  Howard 

400 

.      267,  356 

245,  246 

.      579,589 

245,  539 

.     490 

566 

.     103 

459,  663,  673 

.    452,  496 

552,  572,  618,  620 

.     674 

251 

.     207 

235 

.       62 


263,  265  a 

G3  a 

■222 


INDEX  TO  THE   CASES   CITED. 


Ixxix 


Tiffany  v.  Glover,  3  G.  Greene,  387 
Tillingliast  v.  Johnson,  5  Alabama,  514 
Timmons  v.  Garrison,  4  Humphreys,  148 
V.  Johnson,  15  Iowa,  23 


Tindell  v.  Wall,  Busbee,  3       .         .        . 
Tingley  v.  Bateman,  10  Mass.  343 
Titcomb  v.  Seaver,  4  Maine,  542     . 
Todd  V.  Shouse,  14  Louisiana  Annual,  426 
Toland  v.  Sprague,  12  Peters,  300   . 
Toll  V.  Knight,  15  Iowa,  370        . 
Tomlinson  v.  Collins,  20  Conn.  364 

V.  Stiles,  4  Dutcher,  201  ;  s.  C.  5  Ibid 

V.  Warner,  9  Ohio,  103      . 

Toulmin  i'.  Lesesne,  2  Alabama,  359 
Towle  V.  Robinson,  15  New  Hamp.  408 
Towne  V.  Griffith,  17  New  Hamp.  165      . 

V.  Leach,  32  Vermont,  747 

Towns  V.  Pratt,  33  New  Hamp.  345 
Townsond  v.  Atwater,  5  Day,  298 

y.  Newell,  14  Pick.  332  . 

Train  v.  Wellington,  12  Mass.  495 
Trapnall  i'.  McAfee,  3  Metcalfe  (Ky.),  34 
Travis  v.  Tartt,  8  Alabama,  574 
Treadwell  v.  Brown,  41  New  Hamp.,  12 
V.  Lawlor,  15  Howard  Pract.  R.  8 


426 


Treat  v.  Barber,  7  Conn.  274 

Trenton  Banking  Co.  v.  Haverstick,  6  Halsted,  171 

Trew  V.  Gaskill,  10  Indiana,  265      . 

Trieber  v.  Blacher,  10  Maryland,  14 

Tripp  V.  Brownell,  12  Cushing,  376 

Tromblyj;.  Clark,  13  Vermont,  118    . 

Trowbridge  v.  Means,  5  Arkansas,  135    . 

— V.  Weir,  6  Louisiana  Annual,  706 

Tubb  V.  Madding,  Minor,  129 

Tucker  v.  Atkinson,  1  Humphreys,  300 

V.  Butts,  6  Georgia,  580 

r.  Clisby,  12  Pick.  22       .         .         . 

V.  Frederick,  28  Missouri,  574     . 

V.  Marsteller,  1  Cranch,  C.  C.  254 

Tudor  V.  Perkins,  3  Day,  364 

Tufts  V.  Carradine,  3  Louisiana  Annual,  430 

V.  McClintock,  28  Maine,  424 

Tukey  u.  Smith,  18  Maine,  125  . 
Tunnison  v.  Field,  21  Illinois,  108    . 
Tunstall  v.  ]\Ieans,  5  Arkansas,  700 

v.  Worthington,  Hempstead,  662 

Turbill's  case,  1  Saunders,  6  7,  note  1 


SECTION 

207,  238 

453,  496 

193 

.     663 

453 

.     474 

489 

.       25 

89 

658  a 

256,  269,  344,  351, 356 
204,  221 
732,  733 
208 
.     381 
487 
.     570 
195 
.     549 
245 
358,  428 
176 
452,  560 
457 
.    71  a 
199 
37,  93 
106 
.     196 
611 
620,  622 
622 
.     132 
713 
251,  508 
515 
.     551 
.      409  a 
.     612 
607 
.     261 
196, 199 
.     299 
227 
.     622 
452 
708,  722 


IXXX  INDEX  TO  THE   CASES   CITED. 

SECTION 

Turner  v.  Armstrong,  9  Yerger,  412        .         .        .        .        .        .         545,  589 

i>.  Austin,  16  Mass.  181 269 

V.  Collins,  1  Martin,  N.  8.  369 19 

y.  Fendall,  1  Cranch,  117 244,251,505 

V.  McDaniel,  1  M'Cord,  552 95 

Twining  w.  Foot,  5  Gushing,  512 381 

Twombly  v.  Hunnewell,  2  Maine,  221 307 

Tyler  r.  Ulmer,  12  Mass.  163 294,302,309 

V.  Winslow,  46  Maine,  348 663 

Tyrell  v.  Rountree,  7  Peters,  464 221 

Tyson  v.  Hamer,  2  Howard  (Mi.),  669  116 

V.  Lansing,  10  Louisiana,  444     .......       11,  149 

u. 

Union  Bank  v.  U.  S.  Bank,  4  Humphreys,  369 79 

United  States  v.  Arredondo,  6  Peters,  691 84 

V.  Langton,  5  Mason,  280  ....  656,  658,  659 

V.  Vaughan,  3  Binney,  394 458,  528 

United  States  Bank  v.  Merchants'  Bank,  1  Robinson  (Va.),  573     .        .  79 

Updegraffy.  Spring,  11  Sergeant  &  Rawle,  188  ....      665,704 

Upham  V.  Naylor,  9  Mass.  490 568 

Urie  V.  Stevens,  2  Robinson  (La.),  251 245 

Utley  V.  Smith,  7  Vermont,  154 297 

V. 

Vairin  v.  Edmonson,  10  Illinois  (5  Oilman),  270 444 

Van  Alstyne  v.  Erwine,  1  Kernan,  331  102 

Van  Amee  v.  Jackson,  35  Vermont,  173 481 

Van  Arsdale  v.  Krum,  9  Missouri,  397  ....  143,  146,  262,  273 

Van  Buskirk  v.  Hartford  Fire  Ins.  Co.,  14  Conn.  583  ....     605 

V. ,  14  Conn.  141       ...         .         608 

Vance  v.  McLaughlin,  8  Grattan,  289 247 

Van  Kirk  v.  Wilds,  11  Barbour,  520 105,  107 

Van  Loan  v.  Kline,  10  Johns.  129 224,  229 

Van  Staphorst  v.  Pearce,  4  Mass.  258 594,  612 

Vason  V.  Clarke,  4  Louisiana  Annual,  581  ......     636 

Veiths  17.  Hagge,  8  Iowa,  163 173 

Vienne  v.  M'Carty,  1  Dallas,  165 401 

Vincent  v.  Watson,  18  Penn.  State,  96    .         .         .         .         .         .         .         594 

Vinson  v.  Huddleston,  Cooke,  254 224 

Vinton  v.  Bradford,  13  Mass.  114 267,  356 

Voorhees  v.  Hoagland,  6  Blackford,  232 144,  405 

Vosburgh  I'.  Welch,  11  Johns.  175 99 

Vreeland  v.  Brown,  1  Zabriskie,  214 224,  435 

w. 

Wadsworth  v.  Cheeny,  10  Iowa,  257 113 


IXDEX   TO   THE   CASES   CITED. 


Ixxxi 


255 


Wadsworth  v.  Clark,  14  Vermont,  139 
Waite  V.  Osborne,  11  Maine,  185    . 
Wakefield  v.  Martin,  3  Mass.  558 
Walbridge  v.  Smith,  Brayton,  173 

V.  Spalding,  1  Douglass,  451 

Walcot  V.  Pomeroy,  2  Pick.  121 
Walcott  V.  Hendrick,  6  Texas,  406      . 

V.  Keith,  2  Foster,  196 

Walden  v.  Valiant,  15  ilissouri,  409    . 
Wales  V.  ^luscatine,  4  Iowa,  302 
Walke  V.  McGehee,  11  Alabama,  273 
Walker  v.  FItts,  24  Pick.  191 

V.  Foxcroft,  2  Maine,  270 

V.  Gibbs,  2  Dallas,  211 ;  s.  c.  1  Teates, 

V.  Roberts,  4  Richardson,  561     . 

;;.  Wallace,  2  Dallas,  113    . 

V.  Woods,  15  California,  66     . 

Wallace  v.  Barker,  8  Vermont,  440 

V.  Forest,  2  Harris  &  Mc  Henry,  261 

V.  M'Connell,  13  Peters,  136       . 

. V.  Patterson,  2  Harris  &  McHenry,  463 

Walling  V.  Miller,  15  California,  38 
Wallis  V.  Murphy,  2  Stewart,  15 

V.  Wallace,  6  Howard  (Mi.),  254 

Walters  v.  Wa.shington  Ins.  Co.,  1  Iowa,  404 
Ward  V.  Begg,  18  Barbour,  139 

u.  Hartford,  12  Conn.  404 

V.  Howard,  12  Ohio  State,  158 

V.  Lamson,  6  Pick.  358 

V.  Morrison,  25  Vermont,  593 

V.  Whitney,  3  Sandford,  Sup.  Ct.  339  ;  s.  C. 

Ware  v.  Todd,  1  Alabama,  199 

Warner,  Matter  of,  3  Wendell,  424 

V.  Everett,  7  B.  Monroe,  262 

V.  Perkins,  8  dishing,  518 

V.  Webster,  13  Ohio,  505    . 

Warren  v.  Copelin,  4  Metcalf,  594 

V.  Leland,  9  Mass.  265 

Waterhouse  v.  Bird,  37  Maine,  326 

V.  Smith,  22  Maine,  337 

Waterman  v.  Robinson,  5  Mass.  303    . 

V.  Treat,  49  Maine,  309 

Waters  v.  Riley,  2  Harris  &  Gill,  305  . 

Watkins  v.  Field,  6  Arkansas,  391    . 

V.  Otis,  2  Pick.  88 

Watson  V.  Bagaley,  12  Penn.  State,  164 

V.  Kennedy.  8  Louisiana  Annual,  280 

/ 


Selden, 


562 


442 


SECTION 

.  620 
496 
.  527 
373 
.  132 
254 
.   55 
199,453 
.  589 
469,  516,  658  c 
.   541, 545 
248 
267,  290,  371 
557 
262,  273,  275 
662 
.  185 
249 
221,  231,  263 
619,  700,  702 
.  570 
527,  630 
.  108 
107,  131 
.  607,  608 
26 
.  516 
34  a,  273,  275 
.  484 
608 
.  316 
30,  107 
50, 400 
76,  222 
643,  655,  667 
448 
.  719 
349,  367 
345,  353 
423 


641, 


.  367 

345 

327  a 

453,  686 

,  490 

610 

.  313 


Ixxxii  INDEX   TO   THE   CASES   CITED. 

SECTIOS 

Watson  V.  McAllister,  7  Martin,  368 112,  144,  421 

-^ V.  Plerpont,  7  Martin,  413 40 

V.  Todd,  5  Mass.  271 251,  267,  356,  508 

Waynant  v.  Dodson,  12  Iowa,  22 334 

Weathersu.Mudd,  12  B.Monroe,  112 233 

Weaver  v.  Puryear,  11  Alabama,  941 17 

Webb  V.  Lea,  6  Yerger,  473 696 

V.  Miller,  24  Mississippi,  638 674 

V.  Peale,  7  Pick.  247 490 

?;.  Steele,  13  New  Hamp.  230 379,381 

Webster  u.  Coffin,  14  Mass.  196 373,374 

V.  Gage,  2  Mass.  503 461 

V.  Harper,  7  New  Hamp.  594 275,  354,  382 

V.  Lowell,  2  Allen,  123 711 

V.  Randall,  19  Pick.  13 619 

Weed  V.  Dills,  34  Missouri,  483 338,  342 

V.  Jewett,  2  Metcalf,  608 610,  612 

Welch  V.  Gurley,  2  Haywood  (N.  C),  334 496 

V.  Jamison,  1  Howai-d  (Mi.),  160 222 

Weller  v.  Weller,  18  Vermont,  55 689 

Wells  V.  Banister,  4  Mass.  514  .         ; 487 

V.  Brander,  10  Smedes  &  Marshall,  348 224,  435 

V.  Greene,  8  Mass.  504 546 

z;.  Mace,  17  Vermont,  503 684 

Welsh  V.  Joy,  13  Pick.  477 213 

Wendell  v.  Pierce,  13  New  Hamp.  502 513 

Wentworth  v.  Leonard,  4  Gushing,  414 373 

V.  Weymouth,  11  Maine,  446 718 

w.  Whittemore,  1  Mass.  471 544,551,552 

West  y.  Meserve,  17  New  Hamp.  432  . 295 

Westerveltu.  Pinkney,  14  Wendell,  123 255  a 

Weston  u.  Dorr,  25  Maine,  176 353 

Wetherell  v.  Hughes,  45  Maine,  61 374 

Wetherill  v.  Flanagan,  2  Miles,  243 583,  659 

Wetherwax  v.  Paine,  2  Michigan,  555 94 

Wetmore  v.  Daffin,  5  Louisiana  Annual,  496        .         .         .         •         •       94,  132 

Wetter  u.  Rucker,  1  Broderip  &  Bingham,  491 711 

Weyman  v.  Murdock,  Harper,  125 81 

Wharton  v.  Conger,  9  Smedes  &  Marshall,  510         .         .         109,  208,  318,  420 

Wheeler  r.  Aldrich,  13  Gray,  51 713 

V.  Bowen,  20  Pick.  563 247,  501 

V.  Degnan,  2  Nott  &  McCord,  323  ....        46,  62,  404 

V.  Moore,  13  New  Hamp.  478 247 

V.  Nichols,  32  Maine,  233 222,  415 

y.  Slavens,  13  Smedes  &  Marshall,  623 122 

I!.  Smith,  11  Barbour,  345 508 

V.  Train,  3  Pick.  255 245 


INDEX   TO   THE   CASES   CITED.  Ixxxiii 

SECTIOH 

Whidden  v.  Drake,  5  New  Hamp.  13 516 

"Whipple  V.  Cass,  8  Iowa,  126 274 

w.  Thayer,  16  Pick.  25 .         .         605 

Whitaker  v.  Sumner,  9  Pick.  308 237 

White  V.  Jenkins,  16  Mass.  62 463,  487,  541 

V.  Madison,  26  Howard  Pract.  R.  481 290 

V.  Morton,  22  Vermont,  15 248 

V.  Richardson,  12  New  Hamp.  93 694 

V.  White,  30  Vermont,  338 454  6 

V.  Wilson,  10  Illinois  (5  Gilman),  21 70,  407 

V.  Wyley,  17  Alabama,  167 176,738 

Whitehead  v.  Henderson,  4  Smedes  &  Marshall,  704    .         .         .         .     696,  697 

Whiting  V.  Budd,  5  Missouri,  443     . 112,  421 

V.  Earle,  3  Pick.  201 594 

Whitney  v.  Brunette,  15  Wisconsin,  61 84,  113 

V.  Butterfield,  13  California,  335 187,  191  a 

V.  Dean,  5  New  Hamp.  249 539 

V.  Farwell,  10  New  Hamp.  9      269,  351,  353,  356,359,  367,  379,  388,  395 

V.  Ladd,  10  Vermont,  165 290,  371 

■ I'.  Munroe,  19  Maine,  42 464,572 

Whitten  v.  Little,  Georgia  Decisions,  Part  H.  99 604 

Whittleru.  Prescott,  48  Maine,  367 454  a 

V.  Smith,  11  Mass.  211    .         .         .     269,  290,  354,  356,  367,  379,  382 

WhitwelltJ.  Brigham,  19  Pick.  117 29,35 

Wicks  V.  Branch  Bank,  12  Alabama,  594 576,  579,  607 

Wigtall  V.  Byne,  1  Richardson,  412 143 

Wigginu.  Day,  9  Gray,  97 246 

V.  Lewis,  19  New  Hamp.  548 596 

Wiggins  V.  Armstrong,  2  Johns.  Ch.  R.  144 225 

Wight  V.  Warner,  1  Douglass,  384 84 

Wilbraham  v.  Snow,  2  Saunders,  47    .         .        ■ 290 

Wilcox  V.  Mills,  4  Mass.  218 659,  660,  667 

Wilder  v.  Bailey,  3  Mass.  289 506,  544 

V.  Holden,  24  Pick.  8 204,  424 

w.  Weatherhead,  32  Vermont,  765 453,455,674 

Wildes  V.  Nahant  Bank,  20  Pick.  352 481 

Wilds  V.  Blanchard,  7  Vermont,  138 250 

Wiley  i;.  Sledge,  8  Georgia,  532 66 

w.Traiwick,  14  Texas,  662 728,732 

Wilkie  V.  Hall,  15  Conn.  32 216 

Wilkinson  v.  Patterson,  6  Howard  (Mi.),  193 332 

WiUard  v.  Butler,  14  Pick.  550 550 

u.  Rice,  11  Metcalf,  493 199 

V.  Sheafe,  4  Mass.  235 483,  551,  557 

V.  Sturtevant,  7  Pick.  194 489,  639 

Willet  V.  Equitable  Ins.  Co.,  10  Abbott  Pract.  R.  193       .         .         .         474,  477 
V.  A.  &  K.  Railroad  Co.,  36  Maine,  201 667 


Ixxxiv  INDEX  TO   THE   CASES   CITED. 

SECTION 

Williams  v.  Babbitt,  14  Gray,  141    .        .        .        .         .         .       204,  210  a,  424 

.  V.  Barrow,  3  Louisiana,  57 139 

V.  Brackett,  8  Mass.  240 219 

V.  Cheesborough,  4  Conn.  356 206 

?;.  Housel,  2  Iowa,  154 461,659 

V.  Hunter,  3  Hawks,  545 732,  736 

V.  Marston,  3  Pick.  C5 551 

V.  Martin,  1  Metcalfe  (Ky.),  42 106 

. u.  Oppelt,  1  Smedes  &  Marshall,  559 216 

„.  Reed,  5  Pick.  480 490 

V.  Stewart,  3  Wisconsin,  773 437,  448 

V.  Whopler,  1  Head,  401 245 

Williamson  D.  Bowie,  6  Munford,  176        ...         .         .         .         221,263 

t'.  Gayle,  7  Grattan,  152 681 

Willing  V.  Bleeker,  2  Sergeant  &  Rawle,  221 222 

^  ,;.  Consequa,  Peters,  C.  C.  301         ....         .     664,  665,  704 

Willis  V.  Crooker,  1  Pick.  204 282 

V.  Lyman,  22  Texas,  268 94 

Wills' u.  Noyes,  12  Pick.  324 732,  733 

Wilson  V.  Albright,  2  G.  Greene,  125         ..         .         481,  561,  583,  588,  659 

y.  Arnold,  5  Michigan,  98  .         .         ...         .         •    88,106,111 

V.  Britton,  6  Abbott  Pract.  R.  33 75  a 

u.  Carson,  12  Maryland,  54 605,611 

V.  Lane,  33  New  Hamp.  466 199 

y.  Outlaw,  Minor,  36  7 157 

. V.  Wilson,  8  Gill,  192 15 

V.  Wood,  34  Maine,  123 481 

Wlltse  V.  Stearns,  13  Iowa,  282 59,  107 

WImer  v.  Pritchartt,  16  Missouri,  252, 520 

WInchell  v.  Allen,  1  Conn.  385 499 

Windwart  v.  Allen,  13  Maryland,  196 658  e 

Wingate  v.  Wheat,  6  Louisiana  Annual,  238 193,  251 

Winsori;.  Orcutt,  11  Paige,  578 159,167,176 

Winston  y.  Ewing,  1  Alabama,  129 567 

Winter  v.  Drury,  1  Selden,  525 611 

Winthrop  v.  Carleton,  8  Mass.  456 701 

Wintringliam  v.  WIntrlngham,  20  Johns.  296 225 

Wise  V.  Hilton,  4  Maine,  435 706 

Witherspoon  v.  Barber,  3  Stewart,  335 662 

Wolfy.  Tappan,  5  Dana,  361 4.54 

Wolfe  V.  Dorr,  24  Maine,  104 253  a 

Wood  y.  Bodwell,  12  Pick.  268 600 

y.  Lake,  13  Wisconsin,  84 619 

y.  Pcirtridge,  11  Mass.  488 551,578,667,718 

V.  Squires,  28  Missouri,  528 133,  147 

y.  Washburn,  2  Pick.  24  236 

V.  Weir,  5  B.  Monroe,  544 236,  727,  732 


INDEX  TO   THE   CASES   CITED. 


Ixxxv 


Woodbridge  i7.'^Iorse,  5  New  Hamp.  519 

—  V.  TVinthrop,  1  Root,  557 

Woodbury  v.  Long,  8  Pick.  543 
Woodley  v.  Shirley,  Minor,  14     . 
Woodman  v.  Trafton,  7  Maine,  1 78 
Woodrufi'  V.  French,  6  Louisiana  Annual,  62 
Woodward  u.  Adams,  9  Iowa,  474  . 
V.  Woodward,  4  Halsted,  115     . 


464 


Wood  worth  v.  Lemmerman,  9  Louisiana  Annual,  524 

j;.  Ranzehousen,  7  Gushing,  430 

Woolfolk  V.  Cage,  Walker,  300        ...         . 
Wortliington  v.  Gary,  1  Metcalfe  (Ky.),  470 

V.  Jones,  23  Vermont,  546 

Wray  i'.  Gilmore,  1  Miles,  75       ...         . 
Wright  V.  Bosworth,  7  New  Hamp.  590 

v.  Foord,  5  New  Hamp.  178 

r.  Ragland,  18  Texas,  289   .'     . 

V.  Smith,  19  Texas,  297 


Wrigley,  Matter  of,  4  Wendell,  602  ;  s.  c.  8  Wendell 
V.  Geyer,  4  Mass.  102    .         . 


Wyatt's  Adm'r.  v.  Rambo,  29  Alabama,  510 
Wybrants  v.  Rice,  3  Texas,  458 
Wyman  v.  Hichborn,  6  Gushing,  264 


134 


SECTION 

,  506,  515 

633,  697 

196,  246 

11,420 

352 

.     455 

.      327  b 

.     500 

256 

.     674 

18 

95 

636,  641 

.     101 

465 

487,  659 

111,  123 

133,  416 

59,  60,  63 

.     550 

711 

.     588 

559 


Tale  V.  Saunders,  16  Vermont,  243 
Yarborough  v.  Thompson,  3  Smedes  &  Marshall,  291 
Yarbi-ough  v.  Hudson,  19  Alabama,  653 
Yelverton  v.  Burton,  26  Penn.  State,  351 
Yerby  v.  Lackland,  6  Harris  &  Johnson,  446 
Yoeum  v.  Barnes,  8  B.  Monroe,  496    .         .         . 
Yongue  V.  Linton,  6  Richardson,  275 
Young  V.  Gregorie,  3  Gall,  446 

V.  Grey,  Harper,  38       .... 

V.  Nelson,  25  Illinois,  565 

V.  Ross,  1 1  Foster,  201  ... 

V.  Walker,  12  New  Hamp.  502 

. v.  Young,  2  Hill  (S.  G.),  425 

Yourt  V.  Hopkins,  24  Illinois,  326        . 


271 


.      194  a 

579,  589,  717 

743 

.  244  a,  261 

87 

.      328,  336 

535 

.     732 

140,  144,  421 

54  a 

475 

358,  359,  428,  429 
251,499,  625 
.     222 


Zeigenhagen  v.  Doe,  1  Indiana,  296 
Zurcher  v.  Magee,  2  Alabama,  253 


221,  224,  447 
506,  658  a 


LAW   OF   SUITS   BY   ATTACHMENT. 


THE 


LAW  OF  SUITS   BY  ATTACHMENT. 


CHAPTER    I. 

ORIGIN,   NATURE,   AND   OBJECTS   OF  THE   REMEDY   BY   ATTACHMENT. 

§  1.  The  preliminary  attachment  of  a  debtor's  property,  for  the 
eventual  satisfaction  of  the  demand  of  a  creditor,  is  unquestion- 
ably a  procoodinfT  of  groat  antiquity.  Whether  the  statement  of 
Mr.  Locke,  in  his  Treatise  on  the  Law  of  Foreign  Attachment  in 
the  Lord  Mayor's  Court  of  London,  ascribing  its  origin  to  the  Ro- 
man law,  be  capable  of  exact  verification,  need  not  now  detain  us.^ 
It  is  sullicient  for  the  present  purpose,  that,  so  far  as  its  use  in  the 
United  States  is  concerned,  we  have  no  difficulty  in  finding  its 
origin  in  the  custom  of  Foreign  Attachment  of  London,  which  is 
agreed  by  all  authorities  to  have  a  very  ancient  existence.  This, 
with  other  customs  of  that  city,  has,  from  time  to  time,  been  con- 
firmed by  Royal  Charters  and  Acts  of  Parliament,  and  is  declared 
"  never  to  become  obsolete  by  non-user  or  abuser."  It  is  a  singu- 
lar incident  of  those  customs,  that  "  they  may  be  and  are  certified 
and  are  recorded  by  word  of  mouth  ;  and  it  is  directed  that  the 
mayor  and  aldermen  of  the  city,  and  their  successors,  do  declare 
by  the  Recorder  wliether  the  things  under  dispute  be  a  custom  or 
not,  before  any  of  the  King's  justices,  without  inquest  by  jury, 
even  though  the  citizens  themselves  be  parties  to  the  matter  at 
issue  ;  and  being  once  recorded,  they  are  afterwards  judicially  no- 

1  The  foUowinfr  passngc  in  Adams's  Roman  Antiquities,  by  Wilson,  p.  194,  is  prob- 
ablj  that  to  which  Mr.  Locke  refers,  as  sustaining  his  position :  "  It  was  unlawful  to 
force  any  person  to  court  from  his  own  house,  because  a  man's  house  was  esteemed  his 
sanctuary  (tutisslmum  rrfugium  et  Tecfptacnlitm).  But  if  any  lurked  at  home  to  elude  a 
prosecution  (si  fnindationis  causa  latitarel,  Cic.  Quint.  19),  he  was  summoned  (evocaliatnr) 
three  times,  with  an  inter>-al  of  ten  days  iKitween  each  summong,  by  the  voice  of  a  her- 
ald, or  by  letters,  or  by  the  edict  of  the  praetor ;  and  if  he  still  did  not  appear  («e  non 
tistad),  the  prosccator  was  put  in  possession  of  his  effects" 


§  3  ORIGIN,  NATURE,  ETC.  OF   ATTACHilEST.  [CHAP.  I. 

ticed."  ^  Wc  accordingly  find  the  custom  of  Foreign  Attachment 
certified  by  !*!tarkey,  Recorder  of  London,  as  early  as  22  Edward 
IV.  to  be  :  "  That  if  a  plaint  be  alfn-med  in  London,  before,  <fcc., 
against  any  person,  and  it  be  returned  nihily  if  tiio  plaintiff  will 
Burmise  that  another  person  within  the  city  is  a  debtor  to  the  de- 
fendant in  any  sura,  he  shall  have  garnishment  against  him,  to 
warn  him  to  come  in  and  answer  whether  he  be  indebted  in  the 
manner  alleged  by  the  other ;  and  if  he  comes  and  does  not  deny 
the  debt,  it  shall  be  attached  in  his  hands,  and  after  four  defaults 
recorded  on  the  part  of  the  defendant,  such  person  shall  find  new 
surety  to  the  plaintiff  for  the  said  debt ;  and  judgment  shall  be 
that  the  ])laintiff  shall  have  judgment  against  him,  and  that  ho 
shall  be  quit  against  the  other,  after  execution  sued  out  by  the 
plaintiff." 

§  2.  The  custom  thus  set  forth,  was,  it  is  believed,  first  treated 
of  in  an  orderly  manner  by  Mr.  Bohun,  in  a  work  entitled  '*  Privi- 
legia  Londini :  or,  the  Rights,  Liberties,  Privileges,  Laws,  and 
Customs  of  the  City  of  London  "  ;  of  the  third  edition  of  which  a 
copy,  printed  in  172-3,  is  before  me  ;  in  which  the  author  remarks : 
"  It  may  be  here  observed,  that  altho'  the  Charters  of  the  City  of 
London  (as  they  are  here  recited  by  15  Car.  II.)  do  begin  with 
those  of  William  L,  yet  it  must  not  be  understood  as  if  any  of  the 
city  rights,  liberties,  or  privileges  were  originally  owing  to  the 
grants  of  that  prince.  For  't  is  evident,  the  said  City  and  Citizens 
had  and  enjoyed  most  of  the  liberties  and  privileges  mentioned  in 
the  following  charters  (besides  divers  others  not  therein  enumer- 
ated) by  immemorial  usage  and  custom  long  before  the  arrival  of 
William  I." 

§  8.  This  custom,  notwithstanding  its  local  and  limited  charac- 
ter, was  doubtless  known  to  our  ancestors,  when  they  sought  a 
new  home  on  the  Western  continent,  and  its  essential  principle, 
brought  hither  by  them,  has,  in  varied  forms,  become  incorporated 
into  the  legal  systems  of  all  our  States  ;  giving  rise  to  a  large 
body  of  written  and  unwritten  law,  and  presenting  a  subject  of 
much  interest  to  legislatures  and  their  constituents,  as  well  as  to 
the  legal  profession  and  their  clients.  Our  circumstances  as  a 
nation  have  tended  peculiarly  to  give  importance  to  a  remedy  of 

1  Locke  on  Foreign  Attachment,  XVI. 
[2] 


CHAP.  I.]  ORIGIN,  NATURE,  ETC.  OF   ATTACHMENT.  §  4 

this  character.  The  division  of  our  extended  domain  into  many 
diflferent  States,  eacli  sovereign  within  its  territory,  inhabited  by  a 
people  enjoying  unrestrained  privilege  of  transit  from  place  to 
place  in  each  State,  and  from  State  to  State  ;  taken  in  connection 
•with  the  universal  and  unexampled  expansion  of  credit,  the  ab- 
sence of  a  general  Bankrupt  Law,  and  the  prevalent  abolishment 
of  imprisonment  for  debt;  would  naturally,  and  of  necessity,  lead 
to  the  establishment,  and,  as  experience  has  demonstrated,  the  en- 
largement and  extension,  of  remedies  acting  upon  the  property  of 
debtors.  The  results  of  this  tendency,  in  tlie  statute  law  of  the 
several  States,  may  be  discovered  by  reference  to  their  leading 
statutory  provisions,  as  found  in  the  Appendix  ;  while  those  con- 
nected with  the  judicial  administration  of  the  law  appear  in  the 
succeeding  chapters  of  this  work. 

§  4.  In  its  nature  this  remedy  is"  certainly  anomalous.  As  it 
exists  under  the  custom  of  London,  it  has  hardly  any  feature  of 
a  common  law  proceeding.  At  common  law  the  first  step  in  an 
action,  without  which  no  other  can  be  taken,  is  to  obtain  service 
of  process  on  the  defendant ;  under  the  custom,  this  is  not  only 
not  done,  but  it  was  declared  by  Lord  Mansfield,  that  the  very  es- 
sence of  the  custom  is  that  the  defendant  shall  not  have  notice. 
At  common  law  a  debtor's  property  can  be  reached  for  the  pay- 
ment of  his  debt,  only  under  a  fieri  facias ;  under  the  custom,  it 
is  subjected  to  a  preliminary  attachment,  under  which  it  is  so  held 
as  to  deprive  the  owner  of  control  over  it,  until  the  plaintiff's  claim 
be  secured  or  satisfied.  At  common  law  only  tangible  property 
can  be  subjected  to  execution  ;  under  the  custom,  a  debt  due  to 
the  defendant  is  attached,  and  appropriated  to  the  payment  of  his 
debt.  At  common  law,  after  obtaining  judgment,  the  plaintiff  is 
entitled  to  execution  without  any  further  act  on  his  part ;  under 
the  custom,  he  cannot  have  execution  of  the  property  or  debt  in 
the  garnishee's  hands,  without  giving  pledges  to  refund  to  the  de- 
fendant the  amount  paid  by  the  garnishee,  if  the  defendant,  with- 
in a  year  and  a  day,  appear  and  disprove  the  debt  for  which  the 
attachment  is  obtained. 

In  these  and  other  respects  the  proceeding  under  the  custom 
has  an  individuality  entirely  foreign  to  the  common  law.  Its  pe- 
culiar features  have  in  the  main  been  preserved  in  its  more  enlarged 
and  diversified  development  in  this  country.     The  most  material 

[3] 


§  5  ORIGIN,  NATURE,  ETC.  OF   ATTACHMENT.  [CU  KP.  L 

differences  as  it  exists  among  us  are,  the  necessity  of  notice  to  the 
defendant,  either  actual  or  constructive  ;  the  direct  action  of  the 
attacliment  on  tangiUle  property,  as  well  as  its  indirect  effect  upon 
debts,  and  upon  property  in  the  garnishee's  hands ;  the  necessity 
for  the  presentation  of  special  grounds  for  resort  to  it ;  and  the 
requirement  of  a  cautionary  hond,  to  be  executed  by  the  jjhiintiff 
and  sureties,  to  indenniily  the  def'enclant  against  damage  resulting 
from  the  attachment.  Still  the  remedy  is,  with  us,  regarded  and 
treated  as  sui  c/eneris,  and  is  practically  much  favored  in  legisla- 
tion, though  frequently  spoken  of  by  courts  as  not  entitled  to  pe- 
culiar favor  at  their  hands. 

§  4  a.  Nothing  more  distinctly  characterizes  the  whole  system 
of  remedy  by  attachment,  than  that  it  is  —  except  in  some  States 
where  it  is  authorized  in  chancery  —  a  special  remedy  at  laiv,  be- 
longing exclusively  to  a  court  of  law,  and  to  be  resorted  to  and 
pursued  in  conformity  with  the  terms  of  the  law  conferring  it ;  and 
that  where,  from  a  conflict  of  jurisdiction,  or  from  other  cause,  the 
remedy  by  attachment  is  not  full  and  complete,  a  court  of  equity 
has  no  power  to  pass  any  order  to  aid  or  perfect  it.^ 

§  5.  Under  the  custom,  and  likewise  in  this  country,  attach- 
ment is  in  the  nature  of,  but  not  strictly,  a  proceeding  in  rem  ; 
since  that  only  is  a  proceeding  in  rem,  in  which  the  process  is  to 
be  served  on  the  thing  itself,  and  the  mere  possession  of  the  thing 
itself,  by  the  service  of  the  process  and  making  proclamation,  au- 
thorizes the  court  to  decide  upon  it  without  notice  to  any  individ- 
ual whatever.^  The  original  object  of  the  London  proceeding  was, 
by  attachment  of  the  defendant's  property  instead  of  his  body,  to 
compel  his  appearance  by  sufficient  sureties  to  answer  the  plain- 
tiff's demand.^  The  practice  of  summoning  him  at  the  commence- 
ment of  the  proceeding,  if  it  ever  prevailed,  was,  in  all  probability, 
found  to  interfere  with  the  advantage  intended  to  be  given  by  the 
■  attachment,  and  was,  therefore,  discontinued  ;  but  though  the  de- 
fendant is  in  fiict  never  summoned,  still  the  record  of  the  proceed- 
ings in  the  Mayor's  court  must  contain  the  return  of  nihil,  or  it 

1  McPherson  v.  Snowden,  19  Maryland,  197. 

2  Marsliall,  C.  J.,  in  Mankin  v.  Chandler,  2  Brockenbrough,  125  ;  Megee  v.  Beime, 
39  Penn.  State,  50. 

8  Ashley  on  Attacliment,  11.  • 

[4] 


CHAP.  I.]  ORIGIN,  NATURE,  ETC.  OF   ATTACHMENT.  §  6 

will  be  erroneous  and  void.^  All  the  notice,  therefore,  which  the 
defendant  there  has  of  the  proceeding,  is  derived  through  the  at- 
tachment of  his  property  ;  and  herein  is  the  leading  difference 
between  the  London  proceeding  and  ours.  "With  us,  the  writ  of 
attachment  is  always  accompanied  or  preceded  by  a  summons, 
which,  if  practicable,  is  ser\'ed  on  the  defendant ;  if  not,  he  is 
notified  by  publication  of  the  attachment  of  his  property.  If  the 
summons  be  served  and  property  attached,  the  latter,  unless  special 
bail  be  given,  is  held  for  the  ultimate  payment  of  such  judgment 
as  the  plaintiff  may  recover,  and  that  judgment  is  in  personam, 
authorizing  execution  against  any  property  of  the  defendant, 
whether  attached  or  not.  If  the  summons  be  served,  but  no  prop- 
erty attached,  the  suit  proceeds  as  any  other  in  which  the  defend- 
ant has  been  summoned,  unaffected  by  its  connection  with  a  fruit- 
less attachment.  If  property  is  attached,  but  there  be  no  service 
on  the  defendant,  and  he  do  not  appear,  publication  is  made,  and 
the  cause  proceeds  to  final  judgment,  but  affects  only  what  is  at- 
tached, and  the  judgment  will  not  authorize  an  execution  against 
any  other  ])roperty,  nor  can  it  be  the  foundation  of  an  action 
against  the  defendant.  If  tliere  be  neither  service  upon  the  de- 
fendant nor  attachment  of  his  property,  there  is  nothing  for  the 
jurisdiction  to  rest  upon,  and  any  proceedings  taken  in  the  cause 
are  coram  nan  judice  and  void.-  Another  essential  difference  be- 
tween the  two  proceedings  is,  that  while  under  the  custom  the 
defendant  cannot  appear  and  defend  the  action  without  entering 
special  bail,  such  is  not  the  case  with  us.  Here,  it  is  optional  with 
him  to  give  security  for  the  payment  of  the  debt  or  not ;  but  in 
either  event  he  is  generally  allowed  to  appear  and  defend.  If  he 
give  the  security,  the  same  result  follows  as  under  the  custom, — 
the  dissolution  of  .the  attachment,  the  release  of  the  attached  prop- 
erty, and  the  discharge  of  the  garnishee  ;  if  not,  the  property  is 
the  security,  and  remains  in  (Tustody. 

§  6.  Under  the  custom,  the  only  preliminary  affidavit  to  be 
made  by  the  plaintiff,  in  order  to  his  obtaming  the  attachment  is, 
that  the  defendant  is  indebted  to  him  in  a  specific  sum.     In  this 

1  Locke  on  Foreign  Attachment,  12. 

2  Eaton  V.  Badger,  .3.3  New  Ilamp.  228 ;  Carleton  v.  "Washington  Ins.  Co.,  35  Ibid. 
162  ;  Hopkirk  i'.  Bridges,  4  Hcning  &  Munford,  413;  Miller  v.  Sharp,  3  Randolph,  41 ; 
Austin  T.  Bodley,  4  Monroe,  434 ;  Maude  v.  Rodes,  4  Dana,  144 ;  Hunt  v.  Johnson, 
Freeman,  282. 

[5] 


§  7  ORIGIN,  NATURE,  ETC.  OF  ATTACHMENT.  [CHAP.  L 

country,  he  is  generally  required  to  swear,  as  well  to  the  defend- 
ant's indebtedness  as  to  some  certahi  fact,  designated  by  statute  as 
a  ground  for  obtaining  the  writ.  Wherever  this  is  requisite,  it  is 
the  foundation  of  the  exercise  of  jurisdiction  through  this  process, 
and  without  it  no  legal  step  can  be  taken.  The  facts  necessary  to 
be  sworn  to  are  of  great  variety,  and  embrace  many  different 
phases  of  the  same  general  allegations  ;  having  relation  mainly  to 
the  residence  of  the  defendant,  and  to  proceedings  on  his  part  to 
avoid  the  service  of  process,  or  to  dispose  of  his  property  adversely 
to  his  obligations  to  his  creditors,  and  giving  rise  to  a  great  variety 
of  questions  of  general  law  and  legal  practice.  It  would  bo  inter- 
esting to  group  together  the  various  grounds  of  attachment  estab- 
lished by  the  different  States.  Such  a  resumS  would  exhibit  strik- 
ingly the  degree  to  which  the  necessities  of  the  country  have  led 
to  the  enlargement  of  the  sphere  of  this  remedy.  Such,  indeed, 
has  been  the  almost  uniform  tendency  of  all  legislation  on  this 
subject ;  and  it  is  a  noticeable  fact,  that  it  has  exhibited  itself  in 
a  more  marked  degree  in  the  new  States  than  in  some  of  the  old. 
Untrammelled  by  ancient  forms,  precedents,  and  traditions,  their 
legislation  has  exhibited  in  this  regard,  as  in  others,  the  facility  of 
adaptation  to  existing  exigencies  and  circumstances  which  charac- 
terizes a  new  people,  when  free  to  form,  and  engaged  in  the  work 
of  forming,  their  own  institutions.  Hence,  as  experience  has 
prompted,  the  grounds  of  attachment  have  been  multiplied,  until, 
in  some  States,  there  would  hardly  seem  to  be  much  more  needed 
in  this  respect,  unless,  as  in  those  of  New  England,  preliminary 
attachment  should  be  matter  of  right  in  every  action  ex  contractu. 
At  the  same  time  the  scope  of  the  remedy,  as  to  the  causes  of 
action  for  which  it  will  lie,  has  been  extended,  and  liberal  provision 
has  been  made  in  a  number  of  the  States,  for  proceeding  upon  de- 
mands not  due,  in  cases  where  a  postponement  of  remedy  until 
their  maturity  would  endanger  their  collection  ;  —  a  valuable 
measure,  destined,  probably,  at  no  distant  day,  to  become  a  part 
of  the  attachment  laws  of  all  our  States. 

§  7.  The  tendency  is  not  only  to  widen  the  sphere,  but  to  en- 
large the  operation„  of  the  remedy,  by  subjecting  to  attachment 
interests  in,  and  descriptions  of,  property  not  heretofore  subject  to 
execution  at  common  law.  Under  the  custom,  as  before  remarked, 
the  attachment  reaches  only  effects  or  credits  in  the  garnishee's 
[6] 


CHAP,  l]  origin,  nature,  ETC.  OF   ATTACHMENT.  §  8 

hands  ;  while  universally,  with  us,  it  acts  also,  by  direct  levy,  on 
the  defendant's  tangible  property,  real  and  personal.  With  us,  too, 
generally,  equitable  interests  in  real  estate  may  be  attached  ;  and 
recent  legislation  in  several  States  authorizes  the  attachment,  both 
directly  and  by  garnishment,  of  choses  in  action,  and  the  seizure  of 
books  of  accounts,  and  the  subjection  of  accounts  and  evidences 
of  debt,  by  collection  through  a  receiver,  or  other  agent  of  the 
court,  to  the  payment  of  the  defendant's  debt.  At  the  same  time 
there  is  a  more  extended  disposition  manifested  to  give  to  garnish- 
ment —  what  it  has  under  the  custom  —  a  prospective  operation 
upon  effects  coming  into  the  garnishee's  hands  between  the  tune 
of  service  on  him  and  the  time  of  filing  his  answer. 

§  8.  The  natural  result  of  the  matters  thus  briefly  noticed  is, 
to  give  this  remedy  a  high  practical  importance,  and  to  lead  to  a 
voluminous  mass  of  judicial  decisions,  extending  over  a  wider  sur- 
face, and  bringing  into  view  a  greater  variety  of  legal  doctrines, 
than  would  be  conjectured  by  those  who  have  not  examined  the 
subject.  In  relation  to  it  there  can,  in  the  nature  of  our  institu- 
tions, be  no  uniform  system  of  statute  law ;  but  notwithstanding 
the  inevitable  diversity  in  this  particular,  there  is  a  general  unity 
of  aim  and  result ;  so  that  principles  and  rules  of  identical  import 
may  be  —  and  in  numberless  instances  are  — judicially  established, 
under  statutes  widely  differing  in  details.  Indeed,  it  may  be  ques- 
tioned whether  there  is  any  other  subject  of  equal  extent,  in  the 
administration  of  the  law,  depending  so  entirely  upon,  and  so  ex- 
clusively regulated  by,  statutory  provisions,  that  would  exhibit  less 
diversity  of  judicial  decision  than  is  connected  with  this.  It  is, 
therefore,  a  work  of  interest,  to  present  in  a  connected  form  the 
emanations  of  the  judicial  mind  in  all  parts  of  our  coiintry,  in  re- 
lation to  a  proceeding  which  belongs  to  every  system  of  State  laws, 
and  is  everywhere  resorted  to  in  aid  of  creditors  who,  without  it, 
would  often  have  no  adequate  means  of  enforcing  their  claims. 

With  these  general  remarks  we  proceed  to  the  practical  consid- 
eration of  the  subject. 

[7] 


§  10  CAUSE   OF   ACTION.  [CHAP.  H. 

CHAPTER    II. 

FOR   WHAT   CAUSE   OF   ACTION    AN   ATTACHMENT   MAY   ISSUE. 

§  9.  By  the  custom  of  London  all  attachments  are  grounded 
upon  actions  of  debt.^  And  the  debt  must  be  of  such  a  nature  as 
will  sustain  an  action  at  law.  Equital^le  debts,  therefore,  are  not 
sufficient  to  ground  an  attachment  upon  ;  such,  for  instance,  is  a 
legacy,  which  is  recoverable  only  in  the  spiritual  court  or  in  a 
court  of  equity.  Dividends  due.  to  a  creditor  from  the  assignees 
under  a  commission  of  bankruptcy,  are  also  in  the  same  predica- 
ment, as  is  all  trust  property,  for  the  creditor  cannot  sue  for  these 
at  law,  but  must  either  petition  the  chancellor,  or  file  a  bill  in 
equity  to  recover  them.  The  debt  also  must  be  due,  or  it  cannot 
sustain  an  attachment.  Thus  no  attachment  can  be  made  upon  a 
bond,  bill,  or  note,  the  day  of  payment  whereof  is  not  yet  come  ; 
nor  for  a  book  debt  for  payment  of  which  time  has  been  given, 
until  such  time  be  elapsed.^ 

§  10.  In  this  country,  resort  to  this  process  is  in  general  al- 
lowed only  to  "  creditors^  It  has,  therefore,  been  uniformly  held, 
that  an  attachment  will  not  lie  for  any  cause  of  action  founded  in 
tort.  Thus,  it  has  been  decided  that  it  cannot  issue  in  an  action 
of  trover,^  or  trespass  ;  *  nor  for  a  malicious  prosecution  ;  ^  nor  for 
assault  and  battery ;  ^  nor  to  recover  the  amount  of  expenses  in- 
curred for  medical  and  surgical  services,  and  loss  of  time  during 
confinement,  resulting  fi'om  a  wound  inflicted  by  the  defendant  ;7 
nor  for  damages  alleged  to  have  been  sustained  by  the  plaintiff,  in 
consequence  of  a  wrongful  sale  of  his  property  under  execution ;  ^ 

1  Privilegia  Londini,  254. 

2  Ashley  on  Attachment,  21,  22. 

8  Marshall  v.  White,  8  Porter,  551 ;  Hynson  v.  Taylor,  3  Arkansas,  552  ;  Hutchin- 
son V.  Lamb,  Brayton,  234. 

*  Ferris  v.  Ferris,  25  Vermont,  100. 

5  Stanly  v.  Ogden,  2  Root,  259 ;  Hynson  v.  Taylor,  3  Arkansas,  552 ;  Tarbell  v. 
Bradley,  27  Vermont,  535. 

^  Minga  v.  Zollicoffer,  1  Ii-edell  (Law),  278;  Thompson  v.  Carper,  11  Humphreys, 
542. 

">  Prewitt  V.  Carmichael,  2  Louisiana  Annual,  943.     ' 

8  Greiner  v.  Prendergast,  3  Louisiana  Annual,  376. 

[«1 


cnAP.  n.]  CAUSE  of  action.  §  10 

nor  for  damages  caused  by  a  collision  between  two  steamboats  ;^  nor 
for  damages  sustained  by  a  steamboat  running  into  and  destroying 
plaintiflf's  house  ;^  nor  to  recover  from  common  carriers  damages 
for  the  loss  of  a  trunk,  where  the  declaration  is  in  tort  and  not  in 
contract ;  ^  nor  in  an  action  on  the  case  for  money  of  the  plaintiff 
stolen  by  the  defendant ;  *  nor  in  an  action  for  damages  for  the 
alleged  wrongful  and  fraudulent  act  of  the  defendant,  in  breaking 
open  a  letter  intrusted  to  his  care  by  the  plaintiff;^  nor  in  an 
action  for  the  recovery  of  specific  property  ;  ^  nor  in  an  action  for 
slander,  under  a  statute  authorizing  an  attachment  for  torts,  tres- 
passes, or  injuries  actually  done  to  property,  real  or  personal.^  In 
all  such  cases,  the  rule  laid  down  by  the  Supreme  Court  of  Wis- 
consin is  undoubtedly  correct,  that  though  the  plaintiff  should,  in 
his  affidavit  for  obtaining  the  attachment,  allege  a  cause  of  ac- 
tion founded  on  contract,  yet  wlienever  it  appears,  either  from 
the  declaration  or  the  evidence,  that  the  true  cause  of  action  is 
not  of  that  character,  it  is  the  duty  of  the  court  to  dismiss  the 
suit.^ 


1  Swagar  v.  Pierce,  3  Louisiana  Annual,  435 ;  Griswold  v.  Sharpe,  2  California,  17. 

2  Holmes  i-.  Barclay,  4  Louisiana  Annual,  63 ;  McDonald  v.  Forsyth,  13  Missouri, 
549.  See  Irish  i\  Wright,  12  Robinson  (La.),  563;  Hill  v.  Chatfield,  4  Louisiana  An- 
nual, 562. 

*  I'orter  r.  Hildebrand,  14  Penn.  State,  129.     See  Strock  v.  Little,  45  Ibid.  416. 

*  Piscataqua  Bank  v.  Turnley,  1  Miles,  312. 

*  Raver  v.  Webster,  3  Iowa,  502. 

'  Hanna  v.  Loring,  11  Martin,  276. 

'  Sargeant  v.  Helnibold,  Harper,  219;  Baune  v.  Thomassin,  6  Martin,  N.  8.  563. 

'  Elliott  i;.  Jackson,  3  Wisconsin,  649.  The  restriction  of  the  remedy  by  attachment 
to  creditors,  is  of  course  dependent  upon  the  terms  of  the  governing  statute ;  which  may 
be,  and  in  some  States  are,  apparently  sufficiently  comprehensive  to  authorize  an  attach- 
ment in  an  action  founded  on  tort.  For  instance,  in  New  York,  under  its  Code  of 
Procedure,  allowing  an  attachment  "in  an  action  for  the  recovery  of  money,"  t\it  (ques- 
tion arose  wiiether  those  words  authorized  an  attachment  in  an  action  for  a  wTong ; 
and,  as  is  the  case  in  regard  to  many  subjects  which  have  come  before  the  courts  of  that 
State,  we  find  reported  decisions  on  both  sides,  with,  as  yet,  no  final  adjudication  ,by  the 
court  of  last  resort.  In  1850,  in  Hemstien  r.  Matthewson,  5  Howard  Tract.  R.  196,  in 
the  Supreme  Court,  Edmoxds,  .J.  decided  that  the  Code  allowed  an  attachment  against 
a  non-resident  defendant  in  every  action,  whether  for  a  wrong  or  on  contract.  In  1859, 
in  Gordon  v.  Gaffey,  11  Abbott  Pract.  R.  1,  Hogeboom,  J.  held  that  an  attachment 
did  not  lie  in  an  action  for  setting  fire  to  the  barn  of  the  plaintiff,  whereby  the  same, 
•with  all  its  contents,  was  consumed.  In  1860,  in  Floyd  v.  Blake,  11  Abbott  Pract.  R. 
349,  James,  J.  sustained  an  attachment  in  an  action  for  assault  and  battery.  In  1865, 
in  Shaffer  r.  Mason,  29  Howard  Pract.  R.  55,  Ixgr.\ham,  Sutherland,  and  Claeke, 
JJ.  decided  that  an  attachment  would  not  lie  in  an  action  of  trespass  de  Itonis  asportatis. 
And  so  the  matter  stands  in  equilibrio.  When  the  Court  of  Appeals  of  that  State 
shall  have  decided  the  question,  it  will  be  time  enough  to  announce  what  is  the  law  there 
on  this  subject 

[9] 


§  12  CAUSE  OF  ACTION.  [CHAP.  H. 

§  11.  Before  proceeding  to  the  main  subject  of  inquiry,  it  may 
bo  remarked,  that  in  the  absence  of  any  statutory  provision  to  the 
contrary,  non-residents  as  well  as  residents  may  avail  themselves 
of  the  proceeding-  by  attachment  to  secure  debts  due  them.^  And 
where  the  remedy  is  allowed  only  to  residents,  and  the  non-resi- 
dence of  the  plaintiff  does  not  appear  on  the  face  of  the  proceed- 
ings, the  defendant  can  avail  himself  of  it  only  by  a  plea  in 
abatement.^ 

§  12.  Who  may  be  regarded  as  a  creditor,  may  be  often  a 
debatable  question.  A  creditor  is  dcfnied  by  a  recent  writer  to  be 
one  who  has  a  right  to  require  of  another  the  fulfilment  of  a  con- 
tract or  obligation.^  Another  writer  considers  a  creditor  to  be  one 
who  gives  or  has  given  credit  to  another  ;  one  who  trusts  another ; 
one  to  whom  a  debt  is  due  :  in  a  larger  sense,  one  to  whom  any 
obligation  is  due.*  "Webster  defines  the  word  thus  :  "  A  person  to 
whom  a  sum  of  money  or  other  thing  is  due,  by  obligation,  prom- 
ise, or  in  law."  In  the  Civil  Law,  he  is  said  to  be  a  debtor,  who 
owes  reparation  or  damages  for  the  non-performance  of  his  con- 
tract ;  ^  and  of  necessity  he  is  a  creditor  who  has  the  right  to  claim 
such  reparation  or  damages.  The  word  is  certainly  susceptible  of 
latitudinous  construction,  and  it  is  not  perhaps  as  important  here 
to  arrive  at  its  general  meaning,  as  to  ascertain  the  views  of  it, 
and  of  what  constitutes  an  indebtedness,  which  have  received 
judicial  sanction,  in  connection  with  the  resort  to  an  attach- 
ment.^ 


1  "Woodjey  v.  Shirley,  Minor,  24 ;  Tyson  v.  Lansing,  10  Louisiana,  444 ;  Posey  v. 
Buckner,  3  Missouri,  413 ;  Graham  v.  Bradbury,  7  Ibid.  281. 

2  Calhoun  v.  Cozzens,  3  Alabama,  21. 
8  1  Bouvier's  Law  Dictionary,  383. 

*  1  Burrill's  Law  Dictionary,  301. 

6  Hunt  V.  Norris,  4  Martin,  532  ;  1  Pothier  on  Obligations,  159. 

^  As  the  relation  of  debtor  and  creditor  rests  upon  the  existence,  in  some  shape  or 
other,  of  a  debt,  there  are  collateral  sources  from  which,  in  addition  to  the'  direct  ad- 
judications presented  in  the  text,  we  may  draw  illustrations  of  the  meaning  of  that 
word.  It  is  a  word  in  common  use,  and  must  needs  have  a  natural,  plain,  and  ordinary 
signification  ;  and  wherever,  as  in  connection  with  the  subject  of  attachment,  it  occurs 
in  a  statute,  it  comes  within  the  principle  of  construction  expressed  in  Dwarris  on  Stat- 
utes, p.  573,  that  "  the  words  of  a  statute  are  to  be  taken  in  their  ordinary  and  familiar 
signification  and  import,  and  regard  is  to  be  had  to  their  general  and  popular  use "  j 
and  laid  down  by  Kent,  that  "  the  words  of  a  statute,  if  of  common  use,  are  to  be  taken 
in  their  natural,  plain,  obvious,  and  ordinary  signification  and  import." 

Blackstone  says,  "  The  legal  acceptation  of  dd>t  is,  a  sum  of  money  due  by  certain  and 
express  agreeinent :  as  by  a  bond  for  a  determinate  sum ;  a  bill  or  note ;  a  special  bar- 
[10] 


CHAP.  II.]  CAUSE   OF  ACTION.  §  13 

§  13.   In  New  York,  where  the  plaintiff  was  required  to  swear 
that  the  defendant  is  indebted  to  him,  the  court  said  it  did  not 

gain  ;  or  a  rent  reserved  on  a  lease :  where  the  quantity  is  fixed  and  specific,  and  does 
not  depend  upon  any  subsequent  valuation  to  settle  it." 

This,  however,  is  not  the  popular  acceptation  of  the  word.  In  general  use  it  is  not 
regarded  as  a  technical  word,  nor  written  or  spoken  in  a  restricted  or  technical  sense ; 
but  is  universally  employed  as  expressing  whatever  one  man  owes  another,  in  any  form 
of  liability  arising  ex  contractu.  This,  too,  is  its  signification,  as  given  by  all  English 
lexicographers.     Resorting  to  them  we  find  the  following  definitions  :  — 

By  Johnson  and  Walker:  "That  which  one  man  owes  another."  By  Barclay: 
"That  whjch  one  person  owes  another."  By  Baihy :  "  What  is  due  from  one  person 
to  another."  By  Richardson :  "  Any  thing  had  or  held  of  or  from  another,  his  prop- 
erty or  right,  his  due ;  that  which  is  owed  to  him ;  which  ought  at  some  time  to  be 
delivered  or  paid  to  liim."  By  Wthster:  "That  which  is  due  from  one  person  to  an- 
other, whether  money,  goods,  or  services."  By  Worcester:  "That  which  one  person 
owes  to  another ;  due ;  obligation."  By  Toinlin :  "  Debt,  in  common  parlance,  is  a 
sum  of  money  due  from  one  person  to  another."  And  in  1  Bouvier's  Institutes,  §  573, 
it  is  said  :  "  He  toward  whom  an  obligation  has  been  contracted,  is  called  the  obliyee  or 
creditor,  and  he  who  is  bound  to  fulfil  it  is  the  obligor  or  debtor." 

These  definitions,  identical  in  spirit,  and  almost  in  terms,  were  substantially  adopted 
by  the  Supreme  Court  of  Massachusetts,  in  Gray  r.  Bennett,  3  Metcalf,  522,  526,  where 
the  question  presented  was,  whether  the  right  of  action  which  an  insolvent  debtor  has, 
in  that  State,  to  recover  threefold  the  amount  of  interest  paid  by  him  on  a  usurious 
contract,  was  a  debt  which  passed  by  an  assignment  under  the  statute  to  the  assignee, 
so  as  to  enable  him  to  maintain  a  bill  in  equity  to  recover  the  same.  The  court  held 
that  it  was,  and  said  :  "  The  word  debt  is  of  large  import,  including  not  only  debts  of 
record,  or  judgments,  and  debts  of  specialty,  but  also  obligations  under  simple  contracts 
to  a  very  wide  extent ;  and  in  its  popular  sense  includes  all  that  is  due  to  a  man  under  any 
form  (if  olilifjation  or  promise." 

The  law  of  Bankruptcy  sheds  light  on  this  subject.  In  Scotland,  in  the  proceeding 
of  sequestration  taken  by  a  creditor  to  force  his  debtor  into  bankruptcy,  the  question 
would  necessarily  arise  as  to  the  nature  of  the  debt  which  would  enable  a  creditor  to 
take  such  a  step.  Bell,  in  his  Commentaries  (Vol.  II.  p.  319),  thus  treats  of  the 
"  nature  and  amount  of  the  petitioning  creditor's  debt." 

"  Nature  of  the  debt.  —  Debts  are  of  three  kinds  :  pure,  future,  and  contingent.  A  pure 
debt  is  one  arising  on  an  obligation  or  engagement,  of  which  the  term  of  payment  has 
arrived  ;  and  of  which  debt,  consequently,  payment  may  be  immediately  enforced 

"  But  a  debt  may  have  been  incurred,  and  may  be  actually  due,  while  the  amount 
may  not  be  ascertained,  or  capable  of  being  so  stated  as  to  be  precisely  demandable, 
without  the  aid  of  a  court  of  justice.  Such  are  certain  claims  of  damages..  Something 
has  already  been  said  of  claims  of  damages  (Vol.  I.  p.  654),  and  a  distinction  may  be 
marked  here,  between  damages  for  breach  of  contract  and  reparation  of  injury  from 
delict  and  quasi  delict. 

"  Where  a -claim  of  damages  arises  by  convention  or  breach  of  contract,  the  amount 
may  sometimes  be  brought  to  a  certain  test  or  criterion  ;  and  in  such  cases  it  may  be 
doubted  whether  the  person  entitled  to  such  damage  may  not  swear  to  its  amount  as  a 
debt,  to  the  eftect  of  sustaining  a  petition  for  sequestration ;  as  it  is  not  a  debt  of  which 
either  the  existence  or  the  amount  depends  upon  a  contingency  still  unascertained. 
Thus,  the  loss  sustained  by  non-delivery  of  a  cargo  of  corn  according  to  agreement 
forms  a  claim  of  debt  for  reparation,  ascertainable,  at  once,  by  an  event  already  passed, 
namely,  the  market  price  of  grain,  or  by  the  amount  of  the  sum  actually  paid  for  a  like 
quantity  rendered  necessary  for  fulfilling  the  creditor's  collateral  contracts.  So  the 
damage  occasioned  by  failure  to  build  a  house  may  be  the  sum  which  has  actually 
been  paid  to  another  to  supply  the  place  of  the  contractor." 

This  subject  has  received  attention  in  connection  with  laws  existing  in  some  States, 

[11] 


§  13  CAUSE   OF   ACTION.  [CHAP.  U. 

follow  that  tho  demand  is  to  be  so  certain  as  to  fall  within  the 
technical  definition  of  a  debt,  or  as  to  be  susceptible  of  liquidation 

imposing  personal  liability  on  stockholders,  for  debts  of  corporations.  In  Massachu- 
setts, under  a  statute  requiring  cvei'y  corporation  to  give  notice,  annually,  in  some 
newspaper,  of  the  amount  of  all  assessments  voted  by  said  corporation,  and  actually 
paid  in,  and  all  existing  debts,  and  declaring  that  if  any  corporation  should  fail  to  com- 
ply, the  members  thereof  should  be  personally  liable  for  any  debt  then  due,  the  mean- 
ing of  the  word  debt  was  considered,  in  connection  with  a  question  of  the  competency 
of  a  witness.  The  action  was  in  assumpsit,  at^ainst  a  corporation,  for  unlicjuidated 
damages,  for  breach  of  contract.  The  corporation  offered  as  a  witness  a  person  who 
was  one  of  its  members  when  the  cause  of  action  arose;  but  it  appeared  that  no  notice 
had  been  published  as  required  by  the  statute,  and  his  admissibility  was  contested  on 
the  ground  of  his  personal  liability  for  the  demand  of  the  jjlaintilf  against  the  company. 
The  court  held  him,  for  that  reason,  incompetent  as  a  witness,  and  in  the  course  of  its 
opinion  thus  summarily  disposed  of  one  of  the  points  made  by  the  company:  "For, 
though  the  question  was  made,  whether  such  a  claim  for  unliquidated  damages  is  a 
debt,  within  the  meaning  of  the  statute,  wc  do  not  think  that  it  admits  of  a  reasonable 
doubt  that  all  such  claims  for  damages  were  intended  to  be  incliided  in  the  term 
'debts.'"     Mill-Dam  Foundery  v.  Ilovey,  21  Tick.  417,  455. 

Again,  in  Carver  v.  Braintree  Man.  Co.,  2  Story,  432,  this  question  came  before 
Justice  Story,  under  circumstances  of  a  similar  nature,  and  he  discussed  the  meaning 
of  the  word  debt  at  much  length,  and  with  his  usual  ability,  and  gave  it  a  very  e.Ktcnd- 
ed  construction.  The  action  was  in  tort,  for  an  infringement  of  a  patent.  At  the  trial, 
one  Edson,  who  was  a  member  of  the  corporation  (the  defendant)  at  the  time  of  the 
supposed  infringement,  but  had  since  sold  out  his  interest,  was  oflered  as  a  witness  for 
the  corporation,  but  his  testimony  was  rejected,  because  he  still  had  an  interest  in  the 
event  of  the  suit.  On  a  motion  for  a  new  trial,  the  propriety  of  this  ruling  was  care- 
fully considered,  and  from  the  decision  of  the  court  the  following  extract  is  made. 

"  The  remaining  objection  is  to  the  rejection  of  the  testimony  of  Edson.  And  here 
it  is  that  I  have  entertained  some  doubt,  upon  which  I  was  desirous  of  hearing  the 
further  argument  which  has  now  been  had. 

"  The  defendants  were  created  a  corporation  by  the  statute  of  Massachusetts  of 
the  14th  of  June,  1823,  and  were,  of  coarse,  made  subject  to  all  the  liabilities  and  re- 
quirements of  the  general  statute  of  1821,  ch.  28,  respecting  the  liabilities  of  manufac- 
turing corporations.  That  statute  provides  '  that  every  person  who  shall  become  a 
member  of  any  manufacturing  corporation,  which  may  be  hereafter  established  in  this 
commonwealth,  shall  be  liable  in  his  individual  capacity  for  all  debts  contracted  during 
the  time  of  his  continuing  a  member  of  such  corporation.'  The  question  turns,  there- 
fore, upon  the  meaning  of  the  words,  '  debts  contracted,'  in  the  statute.  Do  they  mean 
literally  and  strictly,  such  debts  as  are  due  and  payable  in  money,  ex  contractu,  by  the 
positive  or  implied  engagements  of  the  corporation,  and  resolve  themselves  into  liqui- 
dated or  determinate  sums  of  money,  due  as  debts,  or  do  they  extend  to  all  legal  liabili- 
ties incurred  by  the  corporation,  and  which,  when  fixed  by  a  judgment,  or  award,  or 
otherwise,  are  debts  of  the  corporation  1  And  if  the  latter  be  the  true  meaning,  then 
does  the  statute  liability  exist  only  from  the  time  when  it  becomes  an  ascertained  debt 
of  the  corporation,  or  does  it  relate  back  to  the  origin  of  the  liability,  and  bind  the 
corporators  from  that  time  1 

"If  the  words  'debts  contracted,'  in  the  statute,  are  to  receive  the  limited  construc- 
tion, that  they  are  applicable  only  to  debts  in  the  strict  sense  of  the  term,  that  is,  con- 
tracts of  the  party  for  the  payment  of  money,  and  nothing  else,  it  is  obvious,  that  for 
the  purposes  of  the  statute,  which  although  in  some  sense  it  may  be  deemed  penal,  is 
also  in  another  sense  remedial,  would  be  comparatively  of  little  value.  Suppose  the 
case  of  a  contract  by  the  corporation  to  do  work,  or  to  manufocture  goods  of  a  partic- 
ular quality  or  character,  or  to  furnish  materials,  or  to  buy  cotton  or  wool  undelivered, 
[12] 


CHAP,  n.]  CAUSE   OF  ACTION  §  13 

without  the  intervention  of  a  jury.  Being  indebted  is  synonymous 
with  oicing ;  it  is  sufl&cient,  therefore,  if  the  demand  arise  on  Con- 
or to  build  houses,  or  to  employ  workmen,  and  the  contract  should  be  entirely  unper- 
formed and  broken,  and  refused  to  be  performed,  so  that  the  right  of  the  other  party 
would  be,  not  to  money,  but  to  unliquidated  damages  for  the  non-performance  or  refusal 
to  perform ;  if  these,  which  are  by  no  means  uncommon  contracts,  should  be  without 
the  purview  of  the  statute,  it  would  have  a  very  narrow  and  inadequate  range  and 
operation.  Yet  such  cases  sound  merely  in  damages.  Suppose  a  manufacturing  cor- 
poiation  to  obstruct  its  neighbor's  mill  privilege,  or  stop  his  mill  works,  by  back  flow- 
age,  if  such  acts  be  not  within  the  protection  of  the  statute,  we  see,  at  once,  that  an 
insolvent  corporation  might  do  irreparable  mischief  without  any  just  redress  to  the 
other  party.  Sujjpose  such  an  insolvent  corporation  should  unlawfully,  under  an 
unfounded  claim  of  right,  convert  100  or  1,000  bales  of  cotton  belonging  to  a  third 
person,  we  see  that  the  mischief  could  be  redressed  only  by  an  action  of  trover  for 
unli(iui(lated  damages ;  and  if  the  individual  corporators  were  not  liable  therefor,  after 
an  unsatislicd  jutlguient,  the  statute  M-ouId  be  little  more  than  a  delusion.  If,  on  the 
other  hand,  we  should  construe  the  statute  broadly  as  a  remedial  statute,  and  give  to 
the  word  '  debts '  a  meaning  not  unusual,  as  equivalent  to  '  dues,'  and  to  the  word 
'contracted'  a  meaning,  which,  tiiough  more  remote,  is  still  legitimate,  as  equivalent 
to  '  incurred ' ;  so  that  the  phrase  '  debts  contracted,'  in  this  sense  would  be  equivalent 
to  'dues  owing,'  or  'liabilities  incurred,'  the  statute  would  attain  all  the  objects  for 
which  it  seems  designed.  The  Supreme  Court  of  Massachusetts,  in  the  Mill-Dara 
Foundery  v.  Ilovey,  21  Pick.  455,  held,  under  the  statute  of  1829,  ch.  5.5,  sec.  6,  which 
makes  the  stockholders  liable  for  the  debts  of  the  corporation,  that  the  term  'debts' 
included  a  claim  for  unliquidated  damages.  That  wa.s  a  case  ai'ising  ex  contractu ;  but 
the  language  certainly  extends  the  term  'debts'  beyond  its  close  and  literal  meaning. 
And  if  it  covers  cases  of  unliquidated  damages,  ex  contractu,  it  is  difficult  to  say  why  it 
should  stop  there,  and  not  go  further  and  cover  cases  of  unliquidated  damages  arising 
from  torts  to  property.  -In  each  case  there  is  no  debt  until  the  damages  are  ascei'tained 
and  liquidated  ;  and  then  the  debt  seems  to  relate  back  to  its  origin.  Blackstone  says, 
'  a  debt  of  record  is  a  sum  which  appears  to  be  due  by  the  evidence  of  a  court  of  rec- 
ord ;  thus,  when  any  specific  sura  is  acUudgcd  to  be  due  from  the  defendant  to  the 
plaintiff  in  an  action  or  suit  at  law,  this  is  a  contract  of  the  highest  nature,  being  es- 
tablished by  the  sentence  of  a  court  of  judicature.'  Here  Blackstone  manifestly  included 
all  sorts  of  actions  or  suits,  whei'e  the  judgment  is  for  a  sum  certain,  whatever  may  be 
its  nature  or  origin. 

"  I  agree  that  it  is  no  part  of  the  duty  or  functions  of  courts  of  justice,  to  supply  the 
deficiencies  of  legislation,  or  to  correct  mischiefs  which  they  have  left  unprovided  for. 
That  is  not  the  question  here.  But  the  question  is,  whether,  if  the  words  of  a  statute 
admit  of  two  interpretations,  one  of  which  makes  the  legislation  incomplete  for  its 
ajiparent  object,  and  the  other  of  which  will  cover  and  redress  all  the  mischiefs,  that 
should  be  adopted,  in  a  statute  confessedly  remedial,  which  is  the  most  narrow,  rather 
than  that  which  is  the  most  comprehensive,  for  the  reason  only,  that  the  latter  will 
create  an  obligation  or  duty,  beyond  what  is  imposed  by  the  common  law. 

"  It  seems  clear,  that,  in  common  parlance,  as  well  as  in  law,  the  term  is  in  an  en 
larged  sense  somrtimes  used  to  denote  any  kind  of  ajust  demand.  And  in  the  Roman 
law,  it  had  sometimes  the  like  enlarged  signification.  Sed  utrum  ex  delicto  an  ex  con- 
tractu Debitor  sit,  nihil  re/ert,  says  the  Digest. 

"  Upon  this  subject,  I  confess,  that,  with  all  the  lights  which  have  been  thrown  upon 
the  question  by  the  able  arguments  at  the  bar,  I  am  not  without  some  lurking  doubts. 
But  having  reflected  much  upon  the  subject,  and  being  in  the  same  predicament  which 
Lord  Eldon  is  said  to  have  suggested  as  having  sometimes  occurred  to  himself,  that  he 
felt  doubts,  but  was  unable  to  solve  them  to  his  own  entire  satisfaction,  I  have  at  length 
come  to  the  conclusion  that  the  rejection  of  the  witness  as  an  interested  witness  was 

[13] 


§  14  CAUSE   OF  ACTION.  [CHAP.  n. 

tract.  It  was  therefore  held,  that  an  attachment  would  lie  in  an 
action  founded  on  a  bill  of  lading,  whether  the  goods  shipped  were 
not  delivered,  or  were  delivered  in  a  damaged  condition.^ 

§  13  a.  In  Connecticut,  where  the  remedy  by  attachment  is 
confined  to  "  creditors,"  it  was  held,  that  it  was  available  for  the 
recovery  of  a  claim  for  unliquidated  damages  for  the  negligence 
of  the  defendants  in  towing  a  raft  of  logs  from  New  York  to  New 
Haven,  through  Long  Island  Sound,  which  the  defendants  had 
agreed  to  tow  safely  ;  by  means  of  which  negligence  the  raft  was 
broken  up  and  the  logs  scattered,  and  a  large  part  lost,  or  recov- 
ered at  a  great  expense.^ 

§  14.   In  Pennsylvania,  under  a  statute  which,  by  a  strict  and 
literal  construction,  confined  the  writ  of  attachment  to  cases  of 
debt,  the  following  case  arose.     The  defendant  bound  himself  to 
deliver  to  the  plaintiff  teas  of  a  certain  quality,  and  suited  to  a 
particular  market ;  and  on  failure  to  do  so,  to  pay  the  difference 
between  teas  of  such  quality  and  such  as  should  be  delivered. 
Teas  agreeably  to  contract  were  not  delivered  ;  and  the  plaintiff 
commenced   suit    by   attachment,   swearing    that   the   dilTercnce 
amounted  to  $4,500.     It  was  held,  that  this  was  a  debt  within 
the  meaning  of  the  statute,  for  which  an  attachment  would  lie. 
"  It  is  not  every  claim,"  said  the  court,  "  that,  upon  a  fair  con- 
right.   I  follow  out  the  doctrine  in  the  case  of  the  Mill-Dam  Foundery  v.  Hovey,  which, 
as' far  as  it  goes,  disclaims  the  interpretation  of  the  word  'debt,'  as  limited  to  contracts 
for  the  payment  of  determinate  sums  of  money.     Parsing  that  line,  it  does  not  seem  to 
me  easy  to  say,  that  if  cases  of  unliquidated  damages  may  be  treated  as  debts,  because 
they  end  in  the  ascertainment  of  a  lixed  sum  of  money,  that  we  are  at  liberty  to  say 
that  the  doctrine  is  not  equally  applicable  to  all  cases  of  unliquidated  damages,  whether 
arising  ex  contractu  or  ex  delicto.     If  ultimately  it  ends  in  a  debt,  as  a  judgment  for 
'  damages  does,  that  case  asserts  that  its  character  as  a  debt  relates  back  to  its  origin. 
Besides,  it  seems  to  me  upon  principle  to  be  reasonable,  if  not  absolutely  justified  by 
aiithority,  to  hold,  that  if  the  transaction  occurs  while  a  person  is  a  member  of  the 
corporation,  and  he  would,  if  he  remained  a  member,  be  liable  for  the  ultimate  debt 
adjudged,  it  may  well  be  treated  as  an  inchoate  debt,  consummated  by  the  judgment. 
Since  the  argument  was  had,  my  attention  has  been  called  to  the  case  of  Gray  v.  Ben- 
nett, 3  Metcalf,  522,  which,  in  several  respects,  confirms  the  reasoning  which  I  had  pre- 
viously adopted,  in  relation  to  the  meaning  of  the  word  '  debt,'  and  the  construction 
which  it  ought  to  receive  in  a  remedial  statute.     If  I  had  seen  the  case  at  an  earlier 
period,  it  would  have  somewhat  abridged  my  own  researches  on  the  same  subject." 

From  these  citations,  as  well  as  those  in  the  text,  we  are  justified  in  considering  that 
the  word  dcid  has,  at  this  time,  and  in  this  country,  a  much  more  extended  signification 
than  was  allowed  to  it  when  Blackstone  gave  it  the  definition  above  quoted. 

1  Lenox  v.  Rowland,  3  Gaines,  323 ;  In  re  Marty,  3  Barbour,  229. 

2  New  Haven  Saw-Mill  Co.  v.  Fowler,  28  Conn.  103. 

[U] 


CHAP,  n.]  CAUSE   OF  ACTION.        '  §  17 

struction  of  tlus  law,  or  even  in  common  parlance,  can  be  denomi- 
nated a  debt.  For,  in  tbe  first  place,  the  demand  must  arise  out 
of  a  contract,  without  which  no  debt  can  be  created';  and  the 
measure  of  the  damages  must  be  such  as  the  plaintiff  can  aver  to 
be  due  ;  without  which,  special  bail  cannot  regularly  be  demand- 
ed." ^  If,  upon  the  facts  sworn  to,  a  contract  does  not  appear,  or 
cannot  be  necessarily  implied,  an  attachment  will  not  lie.^ 

§  15.  In  Maryland,  under  a  statute  requiring  the  plaintiff  to 
make  oath  that  the  defendant  is  bond  fide  indebted  to  him,  it  was 
held,  that  the  term  "  indebted  "  was  not  to  be  construed  in  a  tech- 
nical or  strict  legal  sense  ;  but  that  where  the  contract  sued  upon 
furnished  a  standard  by  which  the  amount  due  could  be  so  clearly 
ascertained  as  to  enable  the  plaintiff  to  aver  it  in  his  affidavit,  or 
the  jury,  by  their  verdict,  to  find  it,  an  attachment  might  issue.^ 

§  16.  In  Virginia  this  case  occurred.  A  deposited  with  B,  on 
storage,  a  quantity  of  flour,  to  be  re-delivered  on  demand.  B's 
warehouse  took  fire,  and,  with  the  flour,  was  consumed.  A  sued 
by  attachment  in  chancery,  to  recover  the  value  of  tlie  flour.  It 
was  objected  that  the  court  had  no  jurisdiction,  because  the  claim 
was  not  a  debt ;  but  the  Court  of  Appeals  overruled  the  objection 
and  sustained  the  proceeding.* 

§  17.  In  Alabama,  where  the  statute  used  the  words  "  debt  or 
demand,"  and  required  the  plaintiff  "  to  swear  to  the  amount  of 
the  sum  due,"  it  was  held,  that  an  action  might  be  commenced  by 
attachment,  to  recover  for  a  breach  of  warranty  of  the  soundness 
of  a  slave ;  the  damage  for  the  breach  of  warranty  being  the  value 
of  the  slave  at  the  time  of  the  warranty,  and  a  sum  capable  of 
ascertainment,  and  of  which  the  plaintiff  might  make  affidavit ; 
and  the  cause  of  action  arising  out  of  contract,  and  the  measure 
of  the  damages  being  ascertained  by  the  law  of  the  contract.^  In 
the  same  State,  under  another  provision,  authorizing  one  non- 
resident to  sue  another  non-resident  by  attachment,  where  the 
defendant  is  indebted  to  the  plaintiff,  either  by  judgment,  note,  or 

1  Fisher  v.  Consequa,  2  "Washington,  C.  C.  382.  See  Redwood  v.  Consequa,  2 
Browne,  62  ;  Garland  v.  Cunningham,  37  Penn.  State,  228. 

2  Jacoby  v.  Gogell,  5  Sergeant  &  Rawle,  450. 
8  Wilson  V.  Wilson,  8  Gill,  192. 

*  Peter  v.  Butler,  1  Leigh,  285.  ^  Weaver  v,  Puryear,  11  Alabama,  941 

[1.0] 


§  19  '        CAUSE  OF  ACTION.  [CHAP.  IL 

otherwise,  it  was  held,  that  those  terms  did  not  extend  beyond 
causes  of  action  for  which  either  debt  or  indebitatus  assumpsit 
would  lie.* 

§  18.  In  Mississippi,  where  the  "  creditor "  was  required  "  to 
make  oath  to  the  amount  of  his  debt  or  demand,"  it  was  held, 
that  an  attachment  would  lie  to  recover  damages  for  a  breach  of 
covenant.^ 

§  19.  In  Louisiana,  under  a  statute  which  authorized  an  attach- 
ment to  issue  "whenever  a  petition  shall  be  presented  for  the 
recovery  of  a  debt,"  an  action  was  brought  by  attachment  to  re- 
cover tho  value  of  certain  goods  shipped  on  a  steamboat,  and  not 
delivered  according  to  the  terms  of  the  bill  of  lading ;  and  tlie 
case  was  considered  to  be  within  the  statute ;  the  court  holding 
that  all  obligations  arising  from  contract,  express  or  implied, 
either  for  the  payment  of  money  or  the  delivery  of  goods,  create 
a  debt  on  the  part  of  the  obligor,  for  which  an  attachment  may 
issue,  whenever  the  amount  may  be  fairly  ascertained  by  the  oath 
of  the  obligee.^ 

In  the  same  State,  it  was  held,  that  an  attachment  would  lie,  in 
an  action  by  the  purchaser  against  the  vendor  of  a  slave,  alleged 
to  have  absconded  from  the  plaintiff,  and  to  have  returned  to  the 
vendor,  who  harbored  him  and  refused  to  give  him  up,  to  recover 
the  value  of  the  slave,  and  of  his  services  during  his  detention, 
and  damages  for  expenses  incurred  in  demanding  him,  and  for 
coimsel  fees :  the  court  holding  that  the  retention  of  the  slave 
was  a  violation  of  the  contract  of  sale,  and  that  the  responsibility 
thereby  incurred  was  not  diminished  by  an  outrage,  perhaps  a 
crime,  being  superadded  to  it.*  The  law  under  which  the  writ 
was  sued  out  in  this  case  was  Art.  242  of  the  Louisiana  Code  of 
Practice,  in  these  words :  "  The  property  of  a  debtor  may  be  at- 
tached in  the  hands  of  third  persons  by  his  creditors,  in  order  to 
secure  the  payment  of  a  debt,  whatever  may  be  its  nature,  whether 
the  amount  be  liquidated  or  not,  provided  the  term  of  payment 
have  arrived,  and  the  creditor  who  prays  the  attachment  state 
expressly  and  positively  the  amount  which  he  claims  " ;  and  Art. 
243  requires  the  creditor  to  "  declare  under  oath  the  amount  of 

1  Hazard  v.  Jordan,  12  Alabama,  180.      »  Hunt  v.  Norris,  4  Martin,  517. 

2  Woolfolk  V.  Cage,  Walker,  300,  *  Crane  v.  Lewis,  4  Louisiana  Annual,  320. 

[IG] 


CHAP.  II.]  CAUSE   OF  ACTION.  §  21 

the  sum  due  him."  Under  this  law  it  was  held,  that  an  attach- 
ment would  lie  in  favor  of  the  owner  of  a  ship,  against  the  owner 
of  a  dock,  for  failure  to  fulfil  a  contract  by  the  latter  for  the  ser- 
vices of  his  dock  for  the  use  of  the  plaintiff's  ship.^ 

In  the  same  State  it  was  held,  that  an  attachment  might  be  sued 
out,  to  recover  the  value  of  books  delivered  to  the  defendant  to  be 
bound,  and  which  he  failed  to  return.^ 

And  again,  under  a  statute  authorizing  an  attachment  "  in 
every  case  where  the  debt,  damages,  or  demand  is  ascertained 
and  specified,"  it  was  held,  that  attachment  would  lie  to  recover 
damages  sustained  by  the  malfeasance  of  one  in  the  employ  of 
the  plaintiff,  whose  good  conduct  the  defendant  had  guaranteed. 
The  court  in  disposing  of  the  matter  said :  "  By  the  wording  of 
the  statute,  some  cases  of  damages  were  to  be  excluded,  but  then 
it  is  equally  clear  that  some  were  intended  to  be  included ;  and 
we  think  this  is  one  of  them.  To  require  that  the  damages 
should  be  ascertained,  and  made  specific  by  the  act  of  the  party 
sued,  would  be  to  render  the  words  in  the  statute  useless;  for  the 
moment  this  liquidation  took  place,  they  would  cease  to  be  dam- 
ages, and  become  a  debt.  The  act,  therefore,  contemplated  that 
the  sum  due  should  be  settled  by  the  oath  of  the  plaintiff  in  all 
those  cases  where  he  could  ascertain  it.  And  the  cases  in  which 
he  can  do  so,  we  should  consider  those  where  the  amount  does 
not  depend  on  an  opinion  of  the  wrongs  inflicted  on  his  feelings, 
reputation,  or  person,  but  on  a  knowledge  of  the  mjuries  done  to 
his  property."  ^ 

§  20.  In  Arkansas,  where  an  attachment  was  allowed  when 
any  person  "  is  indebted,"  it  was  held,  that  the  term  "  indebted  " 
is  synonymous  with  oiving^  and  that  attachment  might  be  main- 
tained upon  an  unliquidated  as  well  as  a  liquidated  demand, 
arising  ex  contractu,  that  might  be  rendered  certain.  The  case 
was  an  action  for  damages  for  breach  of  a  contract  to  tow  a  boat 
up  Red  River,  and  deliver  certain,  loads  of  corn  at  certain  places 
specified  in  the  contract.* 

§  21.    In  Indiana,  under  a  statute  authorizing  attachment  for 

1  Hjde  V.  Higgins,  15  Louisiana  Annual,  1.    *  Jones  v.  Buzzard,  2  Arkansas,  415. 

2  Turner  v.  Collins,  1  Martin,  n.  s.  369. 

•  Cross  V,  Richai-dson,  2  Martin,  n.  s.  323. 

2  [17] 


§  23  CAUSE   OF   ACTION.  [CHAP.  IL 

"  debts  or  other  demands,"  it  was  decided,  that  a  claim  for  dam- 
ages for  an  injury  to  flour,  while  in  possession  of  the  defendant  as 
a  common  carrier,  and  in  the  course  of  transportation,  was  a  cause 
of  action  for  which  an  attachment  would  lie.^ 

§  22.  In  Michigan,  the  statute  authorizes  an  attachment,  upon 
an  affidavit  being  made  that  the  defendant  is  indebted  to  the 
plaintiff,  and  specifying,  as  near  as  may  be,  the  amount  of  such 
indebtedness,  over  and  above  all  legal  set-offs,  and  that  the  same  is 
due  upon  contract,  express  or  implied,  or  upon  judgment.  Under 
that  statute  a  plaintiff  in  attachment  filed  a  declaration,  counting 
upon  the  breach  of  an  express  contract  for  freight  of  certain  ves- 
sels, claiming  damages  therefor,  and  for  demurrage,  and  upon  the 
common  counts  in  iridehitatus  assumpsit,  for  the  use  of  said  ves- 
sels, retained  and  kept  on  dunnage,  and  a  quantum  meruit  count, 
for  use,  &G.  The  court,  in  considering  the  question  whether  the 
declaration  disclosed  a  cause  of  action  which  would  sustain  an 
attachment,  used  the  following  language  :  "  What  is  an  indebt- 
edness ?  It  is  the  owing  of  a  sum  of  money  upon  contract  or 
agreement,  and  in  the  common  understanding  of  mankind,  it  is 
not  less  an  indebtedness  that  the  sum  is  uncertain.  The  result 
of  a  contrary  doctrine  would  be  to  hold  any  liability  which  could 
only  be  the  subject  of  a  general  indebitatus  assumpsit,  quantum 
meruit,  or  quantum  valebant  count  in  a  declaration,  such  an  indebt- 
edness as  could  not  be  the  subject  of  this  remedy  by  attachment. 
"Without  fully  deciding  this  point,  which  is  not  necessarily  raised 
in  this  case,  we  see  no  reason  why  a  demand  arising  ex  contractu, 
the  amount  of  which  is  susceptible  of  ascertainment  by  some 
standard  referable  to  the  contract  itself,  sufficiently  certain  to  en- 
able the  plaintiff,  by  affidavit,  to  aver  it  as  near  as  may  be,  or  a 
jury  to  find  it,  may  not  be  a  foundation  of  a  proceeding  by  attach- 
ment. In  the  present  case  the  contract  furnishes  such  standard, 
equally  as  does  any  contract  for  goods  sold,  or  work  or  labor  done, 
without  express  agreement  as  to  price  or  compensation."^ 

§  23.  In  Illinois,  under  a  statute  which  authorizes  an  attach- 
ment to  issue  where  "  any  creditor  shall  file  an  affidavit,  setting 
forth  that  any  person,  is  indebted  to  him,  stating  the  nature  and 
amount  of  such  indebtedness,  as  near  as  may  be,"  it  was  held, 

1  Bausman  v.  Smith,  2  Indiana,  374.  ^  Roelofson  v.  Hatch,  3  Michigan,  277. 

[18] 


CHAP.  II.]  CAUSE   OF   ACTION.  S  23 

that  an  action  of  account  might  be  instituted  by  attachment,  by 
one  partner  in  a  commercial  adventure  against  another.  The  court 
remarked :  "  The  law  was  designed  to  furnish  a  creditor  with  the 
means  of  collecting  his  debt,  in  a  case  where  he  would  be  unable  to 
do  so  in  the  ordinary  mode  of  proceeding,  and  we  can  see  no  reason 
why  it  should  not  be  as  applicable  to  actions  of  account  as  to  any 
other  class  of  cases.  The  claim  of  a  joint-tenant,  tenant  in  com- 
mon, or  coparcener,  is  just  as  sacred  as  that  of  any  other  creditor ; 
and  because  he  cannot  resort  to  the  more  usual  common  law  actions 
to  enforce  his  rights,  affords  no  reason  why  he  should  be  deprived 
of  tlie  benefit  of  the  attachment  act,  when  he  presents  a  case  that 
would  authorize  an  attachment,  were  he  permitted  to  sue  in  debt 
or  assumpsit. 

"  As  to  the  sufficiency  of  the  affidavit  there  can  be  no  question. 
After  setting  forth  the  dealings  between  the  parties,  and  the  na- 
ture of  the  indebtedness,  with  great  particularity,  it  alleges  that 
the  defendant,  by  means  of  the  premises,  is  indebted  to'  the  plain- 
tiff in  a  sum  stated,  and  that  the  defendant  is  not  a  resident  of 
the  State.  Upon  such  an  affidavit  an  attachment  may  properly 
issue."  ^ 

In  Louisiana,  however,  it  is  held,  that  an  action  by  attachment, 
by  one  general  partner  against  another,  for  an  amount  alleged  to 
be  due,  growing  out  of  the  transactions  of  the  partnership,  cannot 
be  maintained.^     And  so  in  South  Carolina.^ 

In  New  York  an  action  was  instituted  by  one  against  his  former 
copartner,  and  the  complaint  alleged  the  former  partnership,  a  dis- 
solution thereof,  an  assignment  of  the  plaintiff's  interest  to  the 
defendant,  and  the  defendant's  agreement  to  pay  the  partnership 
liabilities,  &c.,  and  divide  the  surplus  ;  that  the  surplus  was  large  ; 
that  the  defendant  had  applied  the  assets  to  his  own  private  use, 
and  refused  to  render  any  account  to  plaintiff;  that  a  large  sum 
of  money  was  due  to  plaintiff,  hut  he  could  not  state  the  amount; 

1  Humphreys  v.  Matthews,  11  Illinois,  471.     See  remarks  of  Slidell,  J.,  in  Brine-   • 
gar  V.  GriflBn,  2  Louisiana  Annual,  154. 

2  Levy  V.  Levy,  11  Louisiana,  581 ;  Brinegar  v.  Griffin,  2  Louisiana  Annual,  154;. 
Johnson  v.  Short,  Ibid.  277. 

3  Rice  V.  Beers,  1  Rice's  Digest  of  South  Carolina  Reports,  75.  This  case  cannot 
probably  be  found  in  any  of  the  volumes  of  the  South  Carolina  Reports,  but  it  is  no 
doubt  authentic.  Mr.  Rice's  Digest  contains  many  cases  decided  in  South  Carolina,  and 
nowhere  else  reported.  In  that  State  they  are  often  refeiTed  to  in  the  opinions  of  the 
Court  of  Appeals  as  authoritative.  Whoever  would  understand  the  reason  of  the  absence 
of  those  cases  from  the  Reports,  is  referred  to  the  Preface  to  Nott  &  M'Cord's  Reports 

[191 


§  25  CAUSE   OF   ACTION.  [CHAP.  E. 

and  he  demanded  an  account,  and  that  the  defendant  pay  what, 
upon  the  accounthig,  might  be  found  due.  Long  after  the  action 
was  instituted,  the  plaintiff  obtained  an  attachment,  upon  an  affi- 
davit alleging  that  more  than  $  23,000  was  due  him  from  tlio 
defendant.  A  supplementary  affidavit  stated  the  amount  at 
$  22,000.  A  motion  to  discharge  the  attachment  was  sustained, 
because  the  plaintiff,  in  stating  the  grounds  of  his  claim,  disclosed 
that  he  did  not  know,  and  could  not  know  until  an  account  had 
been  taken,  what,  or  in  fact  whether  anything,  was  due  him  ;  and 
that  his  mere  opinion  or  belief  was  not  sufficient  to  warrant  the 
granting  of  the  process.^ 

§  24.  The  debt  for  which  an  attachment  may  issue  must  pos- 
sess an  actual  character,  and  not  be  merely  possible,  and  dependent 
on  a  contingency  which  may  never  happen.  Therefore,  where  the 
plaintiff  alleged  as  a  ground  for  obtaining  an  attachment,  that  he 
was  security  upon  a  draft  drawn  for  the  defendant  in  the  sum  of 
$  900,  and  that  the  defendant  was  about  to  remove  himself  out  of 
the  State,  so  that  the  ordinary  process  of  law  could  not  be  served 
on  him,  and  that  thereby  the  plaintiff  would  probably  have  the 
draft  to  pay,  or  suit  would  have  to  be  brought  for  the  same  in 
another  State  ;  it  was  held,  that  the  attachment  could  not  be  sus- 
tained.2 

§  25.  And  though,  as  in  some  States,  an  attachment  will  lie  on 
a  debt  not  due,  yet  there  must  be  an  actual  subsisting  debt,  which 
will  become  due  by  the  efflux  of  time.  Therefore,  where  suit  was 
brought  on  the  4th  of  February,  by  the  drawer  against  the  accept- 
or of  bills  of  exchange,  which  had  been  protested  before,  but  were 
not  taken  up  by  the  drawers  until  some  days  after  that  day,  though 
on  that  day  an  agreement  was  made  by  the  drawers  to  take  them 
up  ;  it  was  held,  that  the  drawers  could  maintain  no  action  until 

1  Ackrojd  v.  Ackroyd,  11  Abbott  Pract.  E.  345;  s.  c.  20  Howard  Pract.  R.  93; 
Guilhon  v.  Lindo,  9  Bosworth,  601. 

2  Benson  v.  Campbell,  6  Porter,  455  ;  Taylor  v.  Drane,  13  Louisiana,  62  ;  Ilarrod  v. 
Burgess,  5  Robinson  (La.),  449.  Li  Moore  v.  Holt,  10  Grattan,  284,  in  a  proceeding 
by  attachment  in  chancery,  authorized  by  the  laws  of  Virginia,  it  was  decided,  that  a 
guarantor  might  maintain  a  bill  against  the  principal  debtor,  in  order  to  protect  him- 
self against  loss  by  reason  of  the  debtor's  failure,  before  he  has  actually  been  subjected 
to  liability  as  guarantor.  This  doctrine,  however,  is  sustainable  only  on  equitable 
grounds,  under  equity  jurisdiction,  and  has  not,  so  far  as  I  have  discovered,  been  rec- 
ognized as  applicable  to  a  proceeding  at  law. 

[20] 


CHAP   n.]  CAUSE   OF   ACTION.  §  27 

the  bills  were  actually  taken  up,  and  that  the  completion  of  the 
agreement  could  not  relate  back  to  the  time  it  was  made,  and  re- 
invest the  drawers  with  the  title  to  the  bills  on  the  4th  of  Feb- 
ruary.^ And  so,  where  a  creditor,  for  the  accommodation  of  his 
debtor,  accepted  a  bill  drawn  by  the  debtor,  payable  a  certain 
number  of  days  after  date,  for  the  amount  of  the  debt,  with  inter- 
est to  maturity,  and  the  bill  was  discounted  by  a  bank,  and  the 
proceeds  applied  to  the  extinguishment  of  the  original  debt;  it 
was  decided,  that  the  acceptor  was  not  a  creditor  of  the  drawer 
until  the  maturity  of  the  bill  and  his  payment  of  it ;  and  that  his 
payment  of  it  at  maturity  could  not  retroact  so  as  to  give  validity 
to  an  attachment  sued  out  by  him  before  the  payment.^ 

§  26.  In  New  York  this  case  arose.  A.  agreed  with  B.,  that  if 
B.  would  sell  him  goods  on  credit,  and  also  guarantee  his  liability 
to  C.  for  a  certain  sum,  he  would  ship  and  consign  to  B.  all  the 
fish  he  should  become  possessed  of  in  his  business  in  Nova  Scotia, 
as  security  for  the  guaranty  and  the  goods  to  be  sold  to  him.  B. 
sold  him  the  goods  on  credit,  and  became  guarantor  to  C,  and 
afterwards  A.  sent  fish  from  Nova  Scotia,  but  refused  to  consign 
them  to  B. ;  whereupon,  and  before  the  term  of  credit  had  ex- 
pired, B.  obtained  an  attachment  against  A.  It  was  olyected  that 
no  cause  of  action  existed  until  the  expiration  of  the  credit  on  the 
sale  of  the  goods,  and  that  therefore  the  attachment  should  be  dis- 
charged ;  but  the  court  held,  that  the  contract  to  give  security  was 
broken,  and  an  action  might  then  be  sustained  for  the  breach  of  it, 
without  any  reference  to  the  time  of  the  credit,  except  that  if  a 
judgment  were  obtained  before  the  credit  expired,  the  court  had 
sufficient  equity  powers  over  its  own  judgments  to  postpone  the 
collection  of  the  amount  of  the  judgment  until  the  credit  should 
expire,  or  to  vacate  it,  if  the  security  agreed  on  should  be  given.^ 

§  27.  In  a  case  which  went  up  to  the  Supreme  Court  of  the 
United  States  from  Louisiana,  the  following  facts  were  presented. 
B.,  of  Charleston,  South  Carolina,  being  indebted  to  Z.  &  Co.,  of 
New  Orleans,  for  the  proceeds  of  a  cargo  of  sugar  consigned  to 
him,  Z.  &  Co.  drew  on  him  certain  bills  of  exchange,  which  were 

^  Blanchard  v.  Grousset,  1  Louisiana  Annual,  96. 

2  Read  v.  Ware,  2  Louisiana  Annual,  498 ;  Price  v.  Merritt,  13  Ibid.  526 ;  Todd  v. 
Shouse,  14  Ibid.  426. 
^  Ward  V.  Begg,  18  Barbour,  139. 

[21] 


§  29  CAUSE   OF  ACTION.  [CHAP.  H. 

accepted,  for  the  full  amount  of  those  proceeds,  and  were  all  nego- 
tiated to  third  persons,  and  were  outstanding,  and  three  of  them 
were  not  yet  due,  when  B.  made  an  assignment  for  the  hencfit  of 
his  creditors.  Z.  &  Co.,  upon  hearing  of  it,  brought  suit  against 
B.  for  the  full  amount  of  the  proceeds  of  the  cargo  of  sugar,  and 
attached  his  property.  The  question  was,  whether,  under  the  law 
of  Louisiana  allowing  an  attachment  to  be  sued  out  upon  a  debt 
not  yet  due,  this  attachment  could  be  maintained.  The  court 
said  :  "  It  is  plain  to  us  that  there  was  no  debt  due  Z.  &  Co.  at  the 
time  when  the  attachment  was  made.  The  supposed  debt  was  for 
the  proceeds  of  a  cargo  of  sugar  and  molasses,  sold  by  B.  on  ac- 
comit  of  Z.  &  Co.  Assuming  those  proceeds  to  be  due  and  pay- 
able, Z.  &  Co.  had  drawn  certain  bills  of  exchange  upon  B.  which 
had  been  accepted  by  the  latter,  for  the  full  amount  of  those  pro- 
ceeds ;  and  all  of  these  bills  had  been  negotiated  to  third  persons, 
and  were  then  outstanding,  and  three  of  them  were  not  yet  due. 
It  is  clear,  upon  principles  of  law,  that  this  was  a  suspension  of  all 
right  of  action  in  Z.  &  Co.,  until  after  tliose  bills  had  become  due 
and  dishonored,  and  were  taken  up  by  Z.  &  Co.  It  amounted  to 
a  new  credit  to  B.  for  the  amount  of  those  acceptances,  during  the 
running  of  the  bills,  and  gave  B.  a  complete  lieii  upon  those  pro- 
ceeds, for  his  indemnity  against  those  acceptances,  until  they  were 
no  longer  outstanding  after  they  had  been  dishonored. 

"  It  is  true  the  statute  law  of  Louisiana  allows,  in  certain  cases, 
an  attachment  to  be  maintained  upon  debts  not  yet  due.  But  it 
is  only  under  very  special  circumstances  ;  and  the  present  case 
does  not  fall  within  any  predicament  prescribed  by  that  law.  The 
statute  does  not  apply  to  debts  resting  in  mere  contingency,  wheth- 
er they  will  ever  become  due  to  the  attaching  creditor  or  not."^ 

§  28.  In  Ohio,  under  a  provision  allowing  an  attachment  to  be 
obtained  in  certain  cases  before  the  debt  has  become  due,  it  was 
decided,  that  the  holder  might  proceed  in  that  way  against  the 
indorser  of  a  negotiable  note  ;  tlie  court  regarding  the  latter  as  a 
debtor  within  the  meaning  of  the  statute  .^ 

§  29.   In  Massachusetts,  a  question  arose  as  to  the  time  when  a 

1  Black  V.  Zacharie,  3  Howard,  Snp.  Ct.  483  ;  Denegre  v.  Milne,  10  Louisiana  An- 
nual, 324  ;  Henderson  v.  Thornton,  37  Mississippi,  448. 

2  Smead  v.  Chrisfield,  1  Handy,  442. 

[22] 


CHAP,  n.]  CAUSE   OF   ACTION.  §  32 

demand  was  due,  so  as  to  be  sued  upon.  A.  accepted  bills  for  the 
accommodation  of  B.,  and  paid  them  on  the  second  day  of  grace, 
and  on  the  morning  of  the  third  day  of  grace  sued  out  an  attach- 
ment against  B.,  to  recover  the  money  so  paid  for  his  accommoda- 
tion. The  defendant  contended  that  the  plaintiff  could  not  bring 
his  suit  until  the  expiration  of  the  last  day  of  grace  ;  but  the  court, 
while  recognizing  the  doctrine  that  an  action  could  not  have  been 
maintained  on  the  hills  until  after  that  day,  yet  held  that  the  "  pay- 
ment before  the  day  was  good  payment  at  the  day,"  and  that  the 
right  of  action  existed  at  any  time  on  the  last  day  of  grace.^ 

§  30.  Where  an  attachment  is  authorized  for  a  debt  not  due, 
if  the  grounds  of  attachment  be  peculiar  to  that  case,  they  cannot 
be  resorted  to  for  the  recovery  of  a  debt  already  due.  If  with  the 
debt  not  due  there  be  combined  a  claim  that  is  due,  the  attach- 
ment will  be  good  as  to  the  former,  but  not  as  to  the  latter.^  And 
in  the  case  of  suit  on  a  debt  not  due,  it  is  erroneous  to  enter  judg- 
ment before  the  maturity  of  the  demand.^ 

§  31.  In  the  cases  above  cited,  where  the  damages  were  un- 
liquidated, it  will  be  observed,  that  the  contracts  for  breach  of 
which  suits  were  brought,  afforded  a  rule  in  tliemselves  for  ascer- 
taining the  damages,  and  upon  this  ground  the  actions  were  sus- 
tained. But  where  such  is  not  the  case,  it  has  been  considered 
that  attachment  cannot  be  resorted  to. 

§  32.  In  the  Circuit  Court  of  the  United  States  for  the  third 
circuit,  a  case  arose,  in  which  damages  were  claimed  by  the  owner 
of  a  ship,  of  one  who  had  chartered  the  ship,  for  renouncing  the 
charter-party,  and  refusing  to  permit  her  to  proceed  on  the  con- 
templated voyage.  In  delivering  the  opinion  of  the  court,  dis- 
solving the  attachment,  Justice  Washington  said :  "  Whether  the 
plaintiffs  can  maintain  any  action  upon  this  charter-party,  by 
reason  of  the  refusal  of  the  defendant  to  take  on  board  a  cargo, 
and  to  prosecute  a  voyage,  is  a  question  which  has  not  been  con- 
sidered by  the  court ;  nor  is  it  necessary  that  it  should  be  decided. 
For,  if  an  action  can  be  maintained  upon  it,  it  still  remains  to  be 

1  Whitwell  V.  Brigham,  19  Pick.  117. 

2  Levy  V.  Millman,  7  Georgia,  167 ;  Danforth  v.  Carter,  1  Iowa,  546. 
8  Ware  v.  Todd,  1  Alabama,  199. 

[23] 


§  33  CAUSE   OF   ACTION.  [CRAP.  H 

Inquired,  by  what  standard  are  the  damages,  wliich  the  phiintiffs 
have  sustiiined  on  account  of  the  refusal  of  the  defendant  to 
perform  the  voyage,  to  be  ascertained  't  That  furnished  l)y  the 
contract,  was  a  certain  sum  per  month,  during  the  voyage,  to  be 
ascertained  at  its  termination ;  but  that  event  never  took  place  ; 
and  consequently  no  rule  can  be  deduced  from  this  source  to  fit 
the  present  case.  This,  then,  is  a  case  in  which  unliquidated 
damages  are  demanded ;  in  wliich  the  contract  alleged  as  the 
cause  of  action,  affords  no  rule  for  ascertaining  them  ;  in  which 
the  amount  is  not,  and  cannot,  with  propriety,  be  averred  in  the 
afTidavit ;  and  which  is,  and  must  be,  altogether  uncertain,  until 
the  jury  have  ascertained  it ;  for  which  operation  no  definite  rule 
can  be  presented  to  them."  ^ 

§  33.  In  New  Jersey,  adjudications  on  this  subject  have  taken 
place.  The  statute  there  required  the  plaintitT,  in  order  to  obtain 
an  attachment,  to  make  oath  that  the  defendant  "  owes  the  plain- 
tiff a  certain  sum  of  money,  specifying  as  nearly  as  he  can,  the 
amount  of  the  debt  or  balance."  An  attachment  was  obtained  in 
an  action  of  covenant,  upon  an  affidavit  that  the  defendant  owed 
the  plaintiff  $300,  "damages  he  had  sustained  by  reason  of  the 
breach  of  covenant  which  the  defendant  made  to  the  plaintiff  and 
hath  broken."  The  nature  of  the  covenant  was  not  disclosed  by 
the  affidavit,  or  otherwise ;  and  the  court  held,  that  the  attachment 
was  not  sustainable,  because  the  cause  of  action  sounded  in  dam- 
ages merely,  and  those  damages  were  unliquidated,  and  could  not 
possibly  be  reduced  to  any  degree  of  certainty  without  the  inter- 
vention of  a  jury.  But  the  court  considered  that  where  a  cove- 
nant is  for  the  payment  of  a  sum  certain,  it  might  be  proceeded 
on  by  attachment.^  In  the  same  State,  it  was  decided  that  attach- 
ment would  not  lie  for  the  recovery  of  a  penalty  intended  to  se- 
cure unliquidated  damages ;  ^  and  in  Georgia,  that  it  would  not 
in  an  action  for  such  damages,  resulting  from  a  breach  of  cove- 
nant.* 

1  Clark  V.  "Wilson,  3  "Wash.  C.  C.  560.  Sed  contra,  Eedwood  v.  Conseqna,  2 
Browne,  62. 

2  Jeffery  v.  "Wooley,  5  Halsted,  123 ;  Barber  v.  Eobeson,  3  Green,  17. 

3  Cheddick  v.  Marsh,  1  Zabriskie,  463;  Hoy  v.  Brown,  1  Harrison,  157;  Dickerson 
V.  Simms,  Coxe,  199;  State  v.  Beall,  3  Harris  &  McHenry,  347. 

*  Mills  V.  Findlay,  14  Georgia,  230.     It  was,  however,  held  otherwise,  under  a  sub- 
sequent statute,  which  is  noticed  in  §  34  a. 
[24] 


CHAP.  II.]  CAUSE  OF  ACTION.  §  34  a 

§  34.  Ill  Alabama,  under  that  clause  of  the  statute  above  re- 
ferred to,  which  authorized  an  attachment  where  the  defendant 
was  indebted  to  the  plaintiff,  the  following  case  arose.  Tlie  plain- 
tiff alleged  that  the  defendant  contracted  with  him  to  take  certain 
iron  upon  a  vessel  of  the  defendant's  lying  at  New  Orleans  and 
bound  for  Providence.  The  iron  was  in  three  flatboats  which 
were  taken  alongside  the  vessel,  and  the  defendant  commenced 
taking  it  on  board ;  but  he  left  a  quantity  of  it  in  the  boats  and 
refused  to  take  it,  alleging  that  it  would  not  pack  well  with  the 
remainder  of  tlie  freight.  One  of  the  boats,  containing  about 
forty  tons  of  the  iron,  of  the  value  of  $1,000,  sunk,  and  was 
totally  lost.  There  was  ample  time  for  the  defendant  to  have 
taken  the  iron  on  board  his  vessel,  and  its  loss  was  caused  by  his 
refusal  to  take  it  according  to  his  contract.  The  court,  regarding 
the  cause  of  action  to  be  one  for  general  and  unliquidated  dam- 
ages, held  it  to  be  not  within  the  terms  of  the  law,  and  dissolved 
the  attachment.^ 

§  34  a.  The  cases  cited  in  the  next  preceding  three  sections 
arose  under  statutes  wliich  contemplated  indebtedness  as  the  foun- 
dation of  the  action.  But  in  some  States  the  language  which 
would  limit  the  remedy  to  cases  of  that  kind  has  been  replaced 
by  more  comprehensive  terms  ;  and  we  will  notice  the  decisions 
which  have  been  made  under  laws  of  that  description.  In  Min- 
nesota, under  a  statute  authorizing  an  attachment  in  an  action 
"for  the  recovery  of  money,"  it  was  held,  that  it  might  be  resorted 
to  in  any  action,  either  ex  contractu  or  ex  delicto?  In  Ohio,  under 
a  statute  using  the  same  terms,  it  was  held,  that  an  attachment 
might  be  obtained  on  an  obligation  to  deliver,  on  and  after  a  cer- 
tain day,  iron  metal  in  payment,  at  a  rate  agreed  on,  for  iron  ore 
sold  and  delivered,  and  that  it  might  be  obtamed  before  the  ma- 
turity of  the  obligation ;  ^  and  in  the  same  State,  that  an  attach- 
ment might  be  resorted  to  in  an  action  by  one  partner  against  his 
copartner,  after  the  dissolution  of  the  firm,  to  recover  a  general 
balance  claimed  upon  an  unsettled  partnership  account.* 

Li  Georgia,  under  a  statute  authorizing  suits  by  attachment 
"in  all  cases  of  money  demands,  whether  arising  ex  contractu  or  ex 
delicto,"  it  was  held,  that  an  attachment  could  be  resorted  to  in  an 

1  Hazard  v.  Jordan,  12  Alabama,  180.         8  -^ard  v.  Howard,  12  Ohio  State,  158. 

2  Davidson  v.  Owens,  5  Minnesota,  69.       *  Goble  v.  Howard,  12  Ohio  State,  165. 

[25] 


§  37  CAUSE   OF   ACTION.  [CHAP.  U. 

action  for  breach  of  a  promise  of  marriage.^  Tlie  same  court  de- 
cided that  it  could  not  he  maintained  on  a  note,  before  it  became 
due,  whicii  was  payable  "  in  notes  good  and  solvent  when  this  be- 
comes due,"  though  the  statute  authorized  an  attachment  on  a 
"  money  demand  "  before  its  maturity ;  it  being  considered  that 
such  a  note  was  not  a  money  demand  until  after  it  fell  due  and 
remained  unpaid.^ 

§  35.  The  right  of  a  creditor  to  sue  his  debtor  by  attachment,  is 
not  im])aired  by  his  holding  collateral  security  for  the  debt.  The 
Supreme  Court  of  Massachusetts  at  an  early  day  held,  that  a  cred- 
itor who  had  received  personal  property  in  pledge  for  the  payment 
of  a  debt,  could  not  attach  other  property  for  that  debt,  without 
first  returning  tho  pledge ;  ^  but  this  position  was  afterwards  re- 
peatedly overruled  by  that  court.* 

§  3G.  If  the  cause  of  action  for  which  the  attachment  is  ol> 
tained,  be  one  upon  which  that  process  might  not  be  legally  issued, 
tho  defect  cannot  bo  reached  by  demurrer  to  the  declaration.^  A 
motion  to  dissolve,  or  a  plea  in  abatement,  would  be  the  proper 
course.  And  no  advantage  can  be  taken  of  the  defect  after  ver- 
dict, where  the  defendant  appears  and  pleads  to  the  merits.^ 

§  37.  There  can  be  no  doubt  that  a  corporation  as  well  as  a 
natural  person  may  sue  by  attachment,  though  the  statute  may 
require  the  affidavit  to  be  made  by  the  plaintiff,  without  mention- 
ing any  other  person  by  whom  it  may  be  made.  The  law  which 
gives  existence  to  the  corporation,  and  which  allows  it  to  sue  and 
be  sued,  necessarily  confers  on  it  tho  authority  to  act  through  its 
agents  in  any  such  matter.'^ 

1  Morton  v.  Pearman,  28  Georgia,  323. 

'  Monroe  v.  Bishop,  29  Georgia,  159. 

8  Cleverly  v.  Brackett,  8  Mass.  150. 

*  Cornwall  v.  Gonld,  4  Pick.  444;  Beckwith  v.  Sibley,  11  Ibid.  482;  Whitwell  v. 
Brigham,  19  Ibid.  117.  In  Taylor  v.  Cheever,  6  Gray,  146,  the  court  said  :  "  The  de- 
cision in  Cleverly  v.  Brackett,  that  a  creditor  to  whom  a  debtor  has  pledged  a  chattel 
as  security  for  a  debt,  cannot,  in  a  suit  for  the  debt,  attach  other  property  of  the  debtor 
■without  first  rctm-ning  the  pledge,  is  contrary  to  all  the  authorities  before  and  since, 
and  is  not  to  be  regarded  as  law." 

6  Cain  V.  Mather,  3  Porter,  224;  Jordan  v.  Hazard,  10  Alabama,  221. 

6  Redus  V.  Wofford,  4  Smedes  &  Marshall,  579  ;  Marshall  v.  White,  8  Porter,  551. 

'  Trenton  Banking  Co.  v.  Haverstick,  6  Halsted,  171. 
[26] 


CUAP.  III.]  DEBTOES,  ABSENT,  ABSCONDING,  ETC.  §  40 


CHAPTER    III. 

ABSENT,  ABSCONDING,  CONCEALED,  AND  NON-RESIDENT  DEBTORS  ;  AND 
DEBTORS  REMOVING  OR  FRAUDULENTLY  DISPOSING  OP  THEIR  PROP- 
ERTY. 

§  38.  Attachments  are  generally  authorized  against  absent, 
absconding,  concealed,  and  non-resident  debtors ;  and  we  will  now 
consider  the  adjudications  in  relation  to  these  several  classes  of 
persons.  But  before  doing  so,  it  may  be  remarked  that  where 
there  are  several  persons  liable  for  the  same  debt,  the  creditor 
may  proceed  by  attachment  against  any  one  or  more  of  them,  in 
relation  to  whom  any  ground  of  attachment  exists,  without  so 
proceeding  against  the  others.^ 

§  39.  Absent  Debtors.  It  has  never  been  considered,  so  far  as  I 
have  discovered,  that  mere  temporary  absence  from  one's  place  of 
residence,  accompanied  with  an  intention  to  return,  is  a  sufficient 
cause  for  attachment.  Were  it  so  regarded,  no  limit  could  be  set 
to  the  oppressive  use  of  tliis  process.  Hence  we  find  that  usually 
the  absence  must  either  be  so  pVotracted  as  to  amomit  to  a  preven- 
tion of  legal  remedy  for  the  collection  of  debts,  or  be  attended  by 
circumstances  indicative  of  a  fraudulent  purpose.  It  is  often, 
therefore,  expressly  provided,  that  to  authorize  an  attachment  on 
account  of  absence,  the  absence  must  be  of  such  character  that 
the  ordinary  process  of  law  cannot  be  served  on  the  debtor.  But 
even  where  no  such  qualification  exists,  no  case  is  to  be  found 
justifying  an  attachment  upon  a  casual  and  temporary  absence  of 
a  debtor.^ 

§  40.  In  Louisiana,  an  attachment  was  taken  out  against  a 
merchant,  who,  during  the  summer,  left  his  store  in  New  Orleans 
in  charge  of  agents,  and  went  to  New  York  on  business,  avowing 
his  intention  to  return  in  the  fall.     It  was  contended  that  any 

1  Chittenden  v.  Hobbs,  9  Iowa,  417;  Austin  v.  Bnrgett,  10  Ibid.  302;  OTerraling 
Courier  v.  Clcffhorn,  3  G.  Greene,  523,  and  Ogilvie  v.  Washburn,  4  Ibid.  548. 
-  Fuller  V.  Bryan,  20  Penn.  State,  144;  Mandel  v.  Peet,  18  Arkansas,  236. 

[27] 


§  43  DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CHAP.  IH. 

kind  of  absence  of  the  debtor  from  the  jurisdictional  limits  of  the 
State  nutliorizcd  the  attachment ;  but  this  view  was  rejected  and 
overruled  by  the  court.^ 

§  41.  In  New  York,  the  court  seemed  to  lay  stress  upon  the 
fact  that  the  debtor  was  out  of  the  reach  of  the  process  of  law ; 
and  held,  that  the  remedy  by  attachment  was  available  against  an 
absent  debtor,  whether  absent  permanently  or  temj)orarily ;  and 
negatived  the  idea  that  one  miglit  go  openly  to  another  State  or 
country,  and  remain  there  doing  business,  but  intending  to  return 
when  his  convenience  will  permit,  and  by  such  expressed  inten 
tion  prevent  the  resort  to  this  remedy.^ 

§  42.  It  is  by  no  means  easy  to  determine  what  absence  of  a 
resident  will  justify  an  attachment.  The  Supreme  Court  of  Mis- 
souri felt  the  didiculty,  in  construing  a  statute  which  authorized 
an  attachment  where  the  debtor  "  has  absented  himself  from  his 
usual  place  of  abode  in  this  State,  so  that  the  ordinary  process  of 
law  cannot  be  served  upon  him."  "  While,"  said  tlie  court,  "  it 
is  not  admitted  that  every  casual  and  temporary  "absence  of  the 
debtor  from  his  place  of  abode,  which,  during  the  brief  period  of 
his  absence,  may  prevent  the  service  of  a  summons,  is  a  legal 
ground  for  issuing  an  attachment  against  his  property,  it  is  diffi- 
cult to  define  the  character  and  '  prescribe  the  duration  of  the 
absence  which  shall  justify  the  use  of  this  process.  It  may  be 
asserted,  however,  that  where  the  absence  is  such,  that  if  a  sum- 
mons issued  upon  the  day  the  attachment  is  sued  out,  will  be 
served  upon  the  defendant  in  sufficient  time  before  the  return  day 
to  give  the  plaintiff  all  the  rights  which  he  can  have  at  the  return 
term,  the  defendant  has  not  so  absented  himself  as  that  the  ordi- 
nary process  of  law  caimot  be  served  upon  him."  ^ 

§  43.  In  New  York,  under  a  statute  authorizing  an  attachment 
where  the  defendant  "  has  departed  from  the  State  with  intent  to 
avoid  the  service  of  a  summons,"  a  somewhat  similar  question 
arose,  as  to  the  act  of  departure  which  would  sustain  an  attach- 
ment.    Unlike  the  case  in  Missouri  just  referred  to,  the  matter 

1  Watson  V.  Pierpont,  7  Martin,  413. 

2  Matter  of  Thompson,  1  Wendell,  43. 

3  Kingsland  v.  Worsham,  15  Missouri,  657;  Ellington  v.  Moore,  17  Ibid.  424;  Fitch 
V.  Waite,  5  Conn.  117. 

[281 


CHAP,  in.]  DEBTORS,  ABSEN'T,  ABSCONDING,  ETC.  §  44 

of  dunitioii  of  absence  "was  not  involved,  but  the  intent  of  Ibe  de- 
parture. The  defendant  openly  and  publicly  went  to  England  on 
business,  making  known  to  his  family  and  his  employees  his  inten- 
tion to  go,  and  expressing  his  expectation  to  return  in  six  weeks. 
But  he  was  on  the  eve  of  bankruptcy ;  and  the  court  held,  that 
if  ho  left  the  State,  though  openly  and  publicly,  and  intending  to 
transact  business  abroad  and  then  return,  but  with  a  view  of  hav- 
ing the  explosion  of  his  affairs  take  place  in  his  absence,  and  of 
avoiding  the  importunity  and  the  proceedings  of  his  creditors  ; 
the  attachment  could  be  sustained.^ 

§  44.  In  Pennsylvania,  an  attachment  was  allowed  "  where  the 
defendant  had  absconded,  or  departed  from  his  abode,  or  remained 
out  of  the  State,  with  design  to  defraud  his  creditors."  A  creditor 
obtained  an  attachment  against  his  debtor  on  the  allegation  that 
he  had  departed  with  that  design.  The  defendant  returned  be- 
fore the  first  day  of  the  term  of  court,  and  resisted  the  attachment, 

1  Morgan  v.  Avery,  7  Barbour,  6.")6.  Tlie  opinion  of  the  court,  delivered  by  Ed- 
monds, J.,  presents,  the  following  sunnniiry  of  the  grounds  on  which  the  attachment 
was  sustained.  "  The  defendant  in  this  case,  having  confessedly  departed  the  State, 
all  that  is  reijuired  is  for  the  court  to  be  satisfied  tiiat  his  departure  was  with  intent  to 
avoid  the  service  of  process.  So  that  if  the  defendant  was  on  the  verge  of  bankruptcy, 
and  left  the  State,  though  openly  and  publicly,  and  with  a  view  of  transacting  business 
abroad,  with  a  view  of  having  the  exjjlosion  take  place  in  his  absence,  and  of  avoiding 
the  importunity  and  the  proceedings  of  his  creditors,  it  would  seem  that  the  case  would 
come  within  the  statute.  It  is  established  that  his  departure  was  not  secret,  and  that 
he  went  to  Europe  on  legitimate  business,  avowing  an  intention  to  return  in  six  weeks. 
He  may  not  have  had  an  intention  to  defraud  his  creditors,  and  therefore  have  left  all 
his  jjroperty  behind  him,  except  the  £  500  which  was  required  for  his  foreign  adventure. 
Still  he  may  have  designed  to  avoid  the  service  of  a  summons  on  behalf  of  his  credi- 
tors;  and  if  he  had  such  an  intention,  the  attachment  can  be  sustahicd.  I  am  inclined 
to  think  that  such  intention  is  justly  inferable  from  his  embarrassed  position ;  from  his 
impaired  credit ;  from  liis  attempts  to  boiTow  money,  so  immediately  on  the  eve  of  his 
departure ;  from  his  confessions  of  his  inability  to  meet  his  payments  as  they  became 
due;  from  his  leaving  behind  him  unpaid  debts  that  were  past  due;  from  the  pains  he 
seems  to  have  taken  not  to  disclose  to  any  of  his  creditors  his  intention  to  go  abroad, 
thou;.'h  he  saw  some  of  them  within  a  day  or  two  of  his  dejiarture,  and  after  he  had 
taken  his  passage ;  from  the  tenor  of  his  conversations  with  them,  which  looked  rather 
to  his  continuance  at  home  than  to  an  absence  abroad ;  and  above  all  from  the  fact  that 
within  twenty-four  hours  after  he  had  sailed,  his  confidential  clerk,  whom  he  had  left  in 
entire  charge  of  his  artairs,  called  a  meeting  of  his  creditors.  It  may  be  that  this  latter 
fact,  as  well  as  the  circumstance  that  his  clerks,  when  interrogated  as  to  his  where- 
al)outs,  gave  false  or  equivocal  answers,  or  professed  ignorance,  may  not  be  justly  im- 
putable to  him.  But  I  cannot  overlook  the  fact  that  the  clerks,  though  afforded  the 
opportunity  on  this  motion,  have  given  no  explanation  of  either  of  these  matters,  but 
leave  the  inference  to  be  drawn  that  their  behavior  was  in  obedience  to  his  instructions, 
and  in  fiirth-rance  of  his  intention  to  let  his  failure  happen,  and  the  winding  up  of  his 
atiairs  occur,  in  his  absence." 

[29] 


§  4G  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CIIAP.  HI. 

urging  his  declaration,  before  he  left,  that  the  object  of  his  jour- 
ney was  to  collect  debts,  due  to  him  in  Baltimore  and  elsewhere  ; 
his  leaving  his  family  behind  ;  and  his  subsequent  return  ;  as  dis- 
proving the  alleged  intent.  But,  on  the  other  hand,  it  was  shown, 
that  before  his  departure  he  had  refused  to  be  seen  by  his  credit- 
ors ;  had  left  the  city  clandestinely,  after  night,  to  join  the  Balti- 
more stage  the  liext  morning ;  had  borrowed  three  dollars  on  the 
road ;  and  had  ordered  letters  to  be  sent  to  him,  directed  to  an- 
other name.  On  these  facts  the  court  considered  that  the  depart- 
ure with  a  design  to  defraud  his  creditors  was  not  disproved,  and 
the  attachment  was  sustained.^ 

§  45.  A  similar  case  occurred  in  Louisiana.  An  attachment 
was  obtained  on  the  ground  that  the  defendant  "  had  departed 
from  the  State,  never  to  return."  Afterwards  he  did  return  ;  and 
the  question  was,  whether  his  return  was  conclusive  evidence  of 
his  intention,  when  he  departed,  to  return.  The  defendant  showed 
that  he  had  been  a  resident  of  the  State  for  about  five  years,  and 
carried  on  business  as  a  merchant ;  that  during  that  time  he  had 
been  in  the  habit  of  absenting  himself  every  year  during  the  sickly 
season,  leaving  an  agent  or  clerk  to  attend  to  his  business.  On 
the  other  hand,  it  appeared  that  the  defendant  was  charged  with 
having,  with  the  aid  of  one  of  the  tellers  of  a  bank,  —  the  plain- 
tiff, —  actually  defrauded  it  of  a  sum  of  upwards  of  sixty  thou- 
sand dollars.  The  court  admitted  that,  in  the  absence  of  any 
suspicious  circumstances,  the  defendant's  return  would  probably 
be  sufficient  to  establish  the  existence,  when  he  left,  of  an  inten- 
tion to  return  ;  but  that  the  consequences  he  had  to  apprehend 
from  the  fraud  he  was  charged  with  having  committed,  rendered 
his  intention  to  avoid  them  by  flight  so  probable,  that  the  mere  cir- 
cumstance of  his  return  did  not  totally  destroy  the  presumption.^ 

§  46.  The  term  "  absent  defendants  "  received  a  judicial  con- 
struction in  Kentucky,  where  it  was  held  to  include  only  such  as 
were,  at  the  commencement  of  the  suit,  actually  absent  from  the 
State.^  And  in  South  Carolina,  under  a  statute  authorizing  an 
attachment  against  a  debtor,  "  being  without  the  limits  of  the 

1  Gibson  i-.  M'Laughlin,  1  Browne,  292. 

2  New  Orleans  Canal  and  Banking  Co.  v.  Comly,  1  Robinson  (La.),  231 ;  Eeeves  v. 
Comly,  3  Ibid.  363 ;  Simons  v.  Jacobs,  15  Louisiana  Annual,  425. 

3  Clark  V.  Arnold,  9  Dana,  305. 

[30] 


CHAP.  Ill  ]  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §  47 

State,"  an  attachment  was  quashed,  because,  when  issued,  the  de- 
fentlant  was  in  fact  within  the  State,  though  he  concealed  himself 
to  avoid  process,  and  thoiigh,  by  his  conduct  and  conversation  be- 
fore his  disappearance,  he  had  given  good  reason  to  believe  that 
he  had  left  the  State.^ 

§  47.  An  interesting  case  arose  in  New  York,  which,  though  not 
very  fully  and  definitely  reported  as  to  the  particular  rule  deduci- 
ble  from  it,  may  nevertheless  be  considered  as  laying  down  this 
doctrine,  —  that  where  a  particular  act,  done  by  a  debtor,  will  au- 
thorize an  attachment,  if  coupled  with  either  one  of  two  several 
intents,  and  an  attachment  is  obtained  on  an  averment  of  the 
doing  of  the  act  with  one  of  those  intents,  it  will  be  sustained  by 
proof  of  the  other  intent.  The  case  involved  a  construction  of 
that  clause  in  the  Code  of  Procedure  authorizing  an  attachment 
where  the  defendant  "  has  departed  from  the  State  with  intent 
to  defraud  his  creditors,  or  to  avoid  the  service  of  a  summons." 
Here,  it  will  be  noticed,  is  one  act,  coupled,  disjunctively,  with  two 
several  intents.  Tlie  act  alone  would  not  authorize  an  attachment, 
but  done  with  either  intent,  would.  An  attachment  was  obtained 
on  an  affidavit  alleging  a  departure,  with  intent  to  defraud  credit- 
ors. The  defendant  moved  to  set  aside  the  attachment,  and  ad- 
duced evidence  to  disprove  the  alleged  intent.  The  plaintiff  gave 
evidence  to  sustain  the  allegation  of  the  affidavit.  The  court  held, 
that  it  was  not  necessary  to  prove  the  intent  as  averred,  provided 
the  evidence  proved  the  other  intent  to  have  existed  ;  and  the  at- 

1  Wheeler  i-.  Degnan,  2  Xott  &  M'Cord,  323.  In  Kentucky,  an  attachment  is  au- 
thorized where  the  debtor  "has  been  absent  from  the  State  four  months."  Under  this 
provision  this  case  arose.  A.  left  his  house  in  "Washington  county,  some  sixty  miles 
from  Louisville,  on  the  18th  of  December,  18.')9,  with  stock  for  Mississippi  and  Louis- 
iana. He  expected  to  ship  the  stock  on  board  a  steamer  at  Louisville  on  the  20th  De- 
cember, but  was  unexpectedly  and  unavoidably  detained  at  Louisville  until  the  24th, 
when  he  embarked,  with  his  stock,  on  a  steamer  bound  down  the  Ohio  River.  He 
did  not  return  to  Kentucky  until  about  the  first  of  the  following  May.  On  and  after 
the  21st  of  April,  several  attachments  were  sued  out  against  him.  The  question  was, 
•vshether  the  four  months*  absence  from  the  State  had  elapsed  on  the  21st  of  April, 
which  was  more  than  that  period  after  he  left  his  house,  but  less  than  that  after  he 
embarked  at  Louisville.  The  court  considered  the  matter  at  length,  and  announced 
its  conclusion  in  these  words :  "  Where  the  debtor  leaves  his  home,  with  the  intention 
of  going  out  of  the  State,  and  does  consummate  his  purpose,  and  is  absent  from  his 
home,  pursuant  to  such  intention,  for  the  period  of  four  months,  we  think  this  should 
be  regarded  as  an  absence  from  the  State,  within  the  meaning  of  the  code  and  the 
intention  of  the  Legislature,  notwithstanding  some  unlooked-for  casualty  may  have 
delayed  him  a  few  days  from  pa.-;sing  beyond  the  territorial  boundary  of  the  State." 
Spalding  v.  Simms,  4  Metcalfe  (Ky.),  28.5 


§  49  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CIIAP.  HI. 

tachmcnt  was  sustained,  because  the  other  intent  was  considered 
as  proved.  It  can  hardly  be  questioned  that  this  is  a  just  and 
sound  view  of  the  matter.  The  designated  intents,  though  sever- 
ally stated,  are  very  similar  in  character,  and  it  might  be  imprac- 
ticable to  state  with  certainty,  or  to  prove,  which  intent  was  present 
in  the  mind  of  the  defendant  at  the  time  of  departure.^ 

§  48.  Absconding  Debtors.  An  absconding  debtor  is  one  who, 
with  intent  to  defeat  or  delay  the  demands  of  his  creditors, 
conceals  himself,  or  withdraws  himself  from  his  usual  place  of 
residence  beyond  the  reach  of  their  process  ;  ^  and  in  order  to  con- 
stitute an  absconding,  it  is  not  necessary  that  the  party  should 
depart  from  the  limits  of  the  State  in  which  he  has  resided.^  The 
Supreme  Court  of  Connecticut  remarked  :  "  If  a  person  depart 
from  his  usual  residence,  or  remain  absent  therefrom,  or  conceal 
himself  in  his  house,  so  that  he  cannot  be  served  with  })rocess,  with 
intent  unlawfully  to  delay  or  defraud  his  creditors,  he  is  an  ab- 
sconding debtor.  But  if  he  depart  from  the  State,  or  from  his 
usual  abode,  with  the  intention  of  again  returning,  and  without 
any  fraiidulent  design,  he  has  not  absconded,  within  the  intend- 
ment of  the  law."  Therefore,  where  a  debtor  departed  from  L., 
his  usual  place  of  residence,  and  went  to  M.,  in  the  same  State, 
where  he  worked  openly  at  his  trade  for  above  three  months,  with- 
out taking  any  measures  to  conceal  himself;  it  was  held,  that 
while  in  this  situation,  he  was  not,  with  respect  to  a  creditor  in  L., 
an  absconding  debtop,  although  his  friends  and  neighbors  in  L. 
did  not  know  where  he  was,  and  his  absence  was  a  subject  of  con- 
versation among  them.* 

§  49.  Since  concealment,  or  withdrawal  from  one's  place  of 
abode,  with  the  intent  before  mentioned,  is  a  necessary  element  of 
absconding,  it  cannot  be  said  of  one  who  resides  abroad,  and  comes 
thence  into  a  particular  jurisdiction,  and  returns  from  that  juris- 
diction to  his  domicile,  that,  in  leaving  the  place  which  he  had  so 
visited,  he  was  an  absconding  debtor.^    And  under  a  statute  au- 

1  Morgan  v.  Avery,  7  Barbour,  656. 

2  In  Bennett  v.  Avant,  2  Sneed,  1 52,  the  Supreme  Court  of  Tennessee  said :  "  To 
abscond,  in  a  legal  sense,  means  to  hide,  conceal,  or  absent  one's  self  clandestinely,  with 
the  intent  to  avoid  legal  process." 

3  Field  V.  Adreon,  7  Maryland,  209. 

*  Fitch  V.  Waite,  5  Conn.  117.     See  Oliver  v.  "Wilson,  29  Georgia,  642. 
8  Matter  of  Fitzgerald,  2  Caines,  318;  Matter  of  Schroeder,  6  Cowen,  603, 
[32] 


CHAP,  m.]       DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §  52 

thorizing  an  attachment  against  any  person  absconding  or  conceal- 
ing himself,  so  that  the  ordinary  process  of  law  could  not  be  served 
upon  him,  it  was  held,  that  only  residents  of  the  State  who  ab- 
sconded were  within  the  scope  of  the  law,  and  that  an  attachment 
would  not  lie,  for  that  cause,  against  one  who  had  not  yet  acquired 
a  residence  thcre.^ 

In  Alabama,  however,  it  was  held,  that  upon  affidavit  that  the 
defendant  "  absconds  or  secretes  himself  so  that  the  ordinary  pro- 
cess of  law  cannot  be  served  upon  him,"  an  attachment  would  lie, 
though  the  defendant  was  a  resident  of  another  State,  and  was  only 
casually  in  the  State  of  Alabama.^ 

§  50.  An  attachment  was  taken  out  against  one,  on  affidavit 
that  he  had  departed  the  State  with  the  intent  of  avoiding  arrest, 
and  of  defrauding  his  creditors.  Upon  its  being  made  to  appear 
to  the  court  that  he  left  his  home  to  go  to  another  place  in  the 
same  State  to  sell  some  property  ;  that,  prcnous  to  his  departure, 
the  object  of  his  journey  was  communicated  to  his  neighbors,  and 
was  generally  understood  ;  and  that  he  publicly  took  his  departure 
and  returned  within  ten  days,  the  attachment  was  superseded.^ 
And  so,  where  it  satisfactorily  appeared  that  the  defendants 
had  not  absconded,  although  from  the  facts  and  circumstances 
the  creditor  was  authorized  to  say.  that  he  believed  they  had 
done   so.* 

§  51.  The  act  of  absconding  necessarily  involves  intention  to 
abscond.  Therefore  a  public  and  open  removal,  or  a  departure 
unaccompanied  with  that  intention,  will  not  constitute  an  abscond- 
ing. Much  less  will  such  a  de[)arture,  accompanied  with  the 
expressed  purpose  to  return,  when  there  are  no  suspicious  cir- 
cumstances to  the  contrary.^ 

§  52.  In  showing  the  true  character  of  a  departure,  where  it  is 
alleged  that  it  was  but  for  a  season,  with  the  intention  of  return 
ing,  evidence  of  common  reputation  in  the  neighborhood  to  that 
effect  is  inadmissible.^     But  in  all  such  cases,  what  the  party  said 

1  Shugart  v.  Orr,  5  Yerger,  192. 
-  Middlcbrook  v.  Ames,  5  Stewart  &  Porter,  158. 

8  Matter  of  Chipman,  1  Wendell,  66.  *  Matter  of  Warner,  3  AYendell,  424 

^  Boardman  v.  Bickford,  2  Aikens,  345. 

6  Pitts  V.  Burroughs,  6  Alabama,  733;  Havis  v.  Taylor,  13  Ibid.  324.  » 

3  [33] 


§  54  DEBTORS,  ABSENT,  ABSCOXDIN'G,  ETC       [cn.VP.  HI 

contemporaneously  with  liis  departure,  or  imraediately  previous 
thereto,  as  to  the  point  of  his  destination,  the  ohject  he  had  in 
view,  and  when  he  expeeted  to  return,  is  a  part  of  the  rea  (/estre, 
and  may  be  received  in  evidence  as  explanatory  of  his  intentions, 
and,  in  the  absence  of  opposing  ]>roof,  might  repel  tlie  inijuitation 
that  he  was  absconding,  or  otherwise  endeavoring  to  evade  the 
service  of  ordinary  process.^  And  so  his  acts  and  declarations  at 
the  time  of,  or  immediately  anterior  to,  the  departure,  are  good 
evidence  to  show  the  intention  to  abscond.^ 

§  53.  As  the  act  of  absconding  is  a  personal  act,  it  can  be  alleged 
only  of  liim  wlio  has  done  it.  "  A  person  can  neither  al)scond, 
keep  concealed,  or  l)e  al)sent  by  j)roxy."  Therefore,  wlicre  one 
meml^er  of  a  firm  absconded,  and  a  creditor  of  the  iirm  sued  all 
the  partners  in  attachment  as  absconding  debtors,  and  one  of  the 
defendants  pleaded  in  abatement  that  he  had  not  absconded,  the 
plea  was  held  sufficient  to  defeat  the  action.^ 

§  53  a.  The  fact  that  a  defendant,  against  whom  an  attachment 
has  been  obtained  on  the  ground  of  his  having  absconded,  after- 
wards appears  to  the  action,  does  not  constitute  proof  that  the 
affidavit  alleging  the  absconding  was  false.  He  may  have  been  an 
absconding  debtor  when  the  writ  was  issued,  and  have  returned 
afterwards.* 

§  54.  Debtors  concealing  themselves.  The  concealment  which 
will  justify  an  attachment  is  but  a  phase  of  absconding,  though 
sometimes  in  attachment  laws  the  two  acts  are  set  forth  separate- 
ly, and  independent  of  each  other,  so  as  to  indicate  that  they  are 
regarded  as  distinct.  More  usually,  however,  they  are  connected  to- 
gether thus,  —  " absconds  or  conceals,"  or  "  absconds  or  secretes" ; 
in  which  case  they  have  been  regarded,  and  no  doubt  rightly,  as 
undistinguishable.  It  has,  therefore,  been  held,  that  an  affidavit 
stating  that  the  defendant  "  absconds  or  conceals  himself,"  does 
not  exhibit  two  separate  grounds  for  attachment,  which,  coupled 

1  Pitts  V.  Burroughs,  6  Alabama,  733 ;  Offutt  v.  Edwards,  9  Robinson  (La.),  90 ; 
Havis  V.  Taylor,  13  Alabama,  324 ;  Burgess  v.  Clark,  3  Indiana,  250 ;  Oliver  v.  Wil- 
son, 29  Georgia,  642. 

2  Ross  V.  Clark,  32  Missouri,  296. 

3  Leach  v.  Cook,  10  Vermont,  239. 
*  Phillips  V.  Orr,  11  Iowa,  283. 

[34] 


CHAP,  m.]       DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §  56 

by  the  disjunctive  "  or,"  would  be  vicious,  but  one  only  ;  for  the 
terms  arc  of  equivalent  meaning.^ 

§  54  a.  An  attachment  was  obtained  on  an  affidavit  that  the 
defendant  "  so  conceals  himself  that  process  cannot  be  served  upon 
him."  The  facts  were,  that  the  defendant  was  called  upon  in  the 
evening  for  payment  of  the  demand,  and  notified  that  unless  he 
made  payment,  suit  would  be  instituted.  During  the  night,  or 
the  next  morning,  he  sold  out  his  entire  stock  of  goods,  without 
taking  an  invoice,  and  in  the  morning  left,  and  was  absent  for  two 
months.  When  called  upon,  the  evening  before,  he  had  promised 
to  call  and  see  plaintiff's  attorney  in  the  morning,  but  left  without 
doing  so,  or  giving  any  notice  that  he  designed  to  leave.  Upon 
these  facts  it  was  held,  that  an  instruction  to  the  jury  in  the  fol- 
lowing terms  was  correct :  "  It  is  concealment  to  avoid  service 
of  process,  no  matter  whether  for  an  hour,  a  day,  or  a  week  ; 
whether  with  a  view  to  defraud  creditors,  or  merely  to  have  time 
to  make  a  disposition,  lawful  or  otherwise,  of  his  property,  before 
his  creditors  got  at  him  ;  it  is  placing  himself  designedly  so  that 
his  creditors  cannot  reach  him  with  process,  which  constitutes  con- 
cealment under  the  statute."^ 

§  55.  "Where  an  attachment  was  issued,  on  affidavit  that  "  the 
defendant  was  secreting  himself,  so  that  the  ordinary  process  of 
law  could  not  be  served,"  and  it  was  shown  on  his  behalf,  that  he 
was  temporarily  absent  from  his  place  of  abode,  on  a  visit  to  his 
son-in-law  in  another  county  of  the  same  State  ;  that  the  plaintiflf 
knew  the  defendant's  intention  to  make  said  visit  long  before  he 
started,  and  that  his  intention  was  also  publicly  and  notoriously 
known  ;  it  was  held,  to  be  unnecessary  for  the  defendant  to  show 
that  he  communicated  to  the  plaintiff  his  intention  to  make  the 
visit ;  and  that  it  was  sufficient  if  it  were  known  in  the  neighbor- 
hood, and  could  have  been  ascertained  on  inquiry.^ 

§  56.  Concealment,  to  authorize  an  attachment,  must  be  with 
the  intent  to  defeat  or  delay  the  claims  of  creditors,  by  avoiding 
the  service  of  process.     Therefore,  one  who  conceals  himself  for 

.  1  Goss  V.  Gowing,  5  Richardson,  477  ;  Conrad  v.  M'Gee,  9  Yerger,  428. 
2  Young  V.  Nelson,  25  Illinois,  565. 

8  Walcott  V.  Hendrick,  6  Texas,  406.     See  Boggs  v.  Bindskoff,  23  Illinois,  66. 

[35] 


§  59  a  DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CHAP.  m. 

the  purpose  of  avoiding  a  criminal  prosecution  is  not  wiibiu  the 
purview  of  the  law.^ 

§  57.  Xon-resident  Debtors.  It  may  be  remarked  that  mere  ab- 
sence from  a  particular  jurisdiction  is  not  a  convertible  term  with 
non-residence.  As  we  shall  presently  see,  absence  from  one's 
domicile  may  be  prolonged  to  such  an  extent  as  to  justify  his  being 
subjected  to  attachment  as  a  non-resident ;  but  where  a  statute 
authorizes  an  attachment  against  a  debtor  on  the  ground  of  non- 
residence,  he  cannot  be  proceeded  against  on  an  affidavit  alleging 
that  he  absconds  and  is  not  within  the  State.^ 

§  58.  In  determining  whether  a  debtor  is  a  resident  of  a  partic- 
ular State,  the  question  as  to  his  domicile  is  not  necessarily  always 
involved  ;  for  he  may  have  a  residence  which  is  not  in  law  his  dom- 
icile. Domicile  includes  residence,  with  an  intention  to  remain  ; 
while  no  length  of  residence,  without  the  intention  of  remainhig, 
constitutes  domicile.^ 

§  59.  A  resident  and  an  inhabitant  mean  the  same  thing.  A 
person  resident  is  defined  to  be  one  "  dwelling  or  having  his  abode 
in  any  place "  ;  an  inhabitant,  "  one  that  resides  in  a  place."  * 
These  terms  will  therefore  be  used  synonymously,  as  they  may 
occur  in  the  cases  cited. 

§  59  a.  In  the  attachment  law  of  at  least  one  State,  —  Mary- 
land, —  the  word  citizen  is  used  in  reference  to  persons  liable  to 
be  proceeded  against  by  attachment,  and  the  meaning  of  that 
word,  in  that  connection,  became  the  subject  of  discussion  there  ; 
and  the  court  held,  that  a  party  may  not  be  a  citizen  for  political 
purposes,  and  yet  be  one  for  commercial  or  business  purposes  ; 
and  considered  that  one  who  was  residing  and  doing  business  in 
that  State  was,  in  contemplation  of  the  attachment  laws,  a  citizen 
of  that  State,  though  an  unnaturalized  foreigner,  and  entitled  to 
no  political  privileges.  This  was,  in  effect,  to  make  no  distinction 
in  meaning  between  the  words  citizen,  resident,  and  inhabitant.^ 

1  Evans  v.  Saul,  8  Martin,  n.  s.  247.  ^  Croxall  v.  Hutchings,  7  Halsted,  84. 

3  Matter  of  Thompson,  1  Wendell,  43 ;  Foster  v.  Hall,  4  Humphreys,  346. 
*  Roosevelt  v.  Kellogg,  20  Johns.  208  ;  Matter  of  Wrigley,  4  Wendell,  602  ;  8.  c.  8 
Wendell,  134;  2  Kent's  Com.  431,  note;  Wiltse  v.  Stearns,  13  Iowa,  282. 
5  Field  V.  Adreon,  7  Maryland,  209  ;  Riserwick  v.  Davis,   19  Ibid.  82^ 
[36] 


CHAP,  in]  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §61 

§  80.  Where  the  subject  of  a  foreign  government,  who  had  been 
trading  in  the  West  Indies,  came  to  this  country  on  a  commercial 
adventure,  without  any  idea  of  settling  here,  or  of  not  returning 
hence  as  soon  as  his  business  was  settled,  he  was  held  to  be  a  non- 
resident, and  liable  as  such  to  an  attachment.^  So,  a  person  com- 
ing occasionally  to  a  place  in  the  course  of  trade,  cannot  be  called 
an  inhabitant  of  that  place.^  Nor  can  one  who  removed  from 
another  State  clandestinely,  and  conceals  himself  in  that  to  which 
he  fled,  be  regarded  as  a  resident  of  the  latter.^  So,  where  one 
who  had  been  a  resident  of  Xew  York,  broke  up  his  residence  and 
sailed  for  England  sine  animo  revertendi,  but  after  staying  there 
three  weeks  returned  to  New  York,  on  his  way  to  Canada,  and 
took  lodgings  in  Brooklyn  to  await  the  arrival  of  his  goods,  and 
remained  there  a  few  weeks,  and  then  passed  over  to  Xew  York, 
and  took  lodgings  there  for  a  few  days  ;  it  was  held,  that  these 
circumstances  afforded  no  foundation  for  a  pretence  that  he  was  a 
resident  or  inhabitant  of  Xew  York.* 

§  61.  But  one  who  goes  to  a  place  with  the  intention  to  reside 
there,  becomes  a  resident  of  that  place,  and  acqiiires  a  domicile 
there,  whether  the  residence  have  been  long  or  short.^  But  this 
animus  manendi  must  certainly  exist,  otherwise  no  domicile  is  ac- 
quired. Therefore,  where  one  had  abandoned  his  residence  in 
Indiana,  and  went  thence  with  his  family  to  Xew  York,  where  he 
lived'  with  a  friend,  while  he  was  looking  out  for  an  opportunity  of 
again  getting  "into  business  ;  and  wliether  he  should  finally  settle 
in  that  State,  or  elsewhere,  was  undetermined  ;  it  was  considered 
that  he  might  be  proceeded  against  by  attachment,  as  a  non-resi- 
dent of  Xew  York.^  But  where  an  attachment  was  taken  out 
against  a  party  on  the  ground  of  non-residence,  the  affidavit  alleg- 
ing he  had  but  just  emigrated  to  this  country,  and  had  no  perma- 
nent residence,  except  his  staying  as  a  boarder  and  lodger  with 
the  plaintiff;  it  was  held,  that  he  was  not  a  non-resident,  having 
left  forever  his  native  land,  and  having  no  determination  to  reside 

1  Matter  of  Fitzgerald,  2  Caines,  318. 

-  Barnett's  Case,  1  Dallas,  152;  Boardman  v.  Bickford,  2  Aikens,  345. 

2  Shugart  v.  Orr,  5  Yerger,  192. 

*  Matter  of  Wrigley,  8  Wendell,  134 ;  Remarks  of  Chancellor  Walworth,  8.  c.  4 
Wendell,  602. 

s  2  Kent's  Com.  431,  note. 

6  BuiTOws  i;.  ililler,  4  Howard  Pract.  R.  349. 

[37] 


§  63  DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CUAP.  in. 

elsewhere  than  where  he  was  at  the  time  of  the  attachment  being 
obtained.^ 

§  62.  On  the  question  of  residence,  the  mode  of  living  is  not 
material,  whether  on  rent,  at  lodgings,  or  in  the  house  of  a  friend. 
•The  apparent  or  avowed  intention  of  constant  residence,  not  the 
manner  of  it,  constitutes  the  domicile.  In  inquiries  of  this  sort 
minute  circumstances  arc  taken  into  consideration  :  the  immedi- 
ate employment  of  the  party,  his  general  pursuits  and  habits  of 
life,  his  friends  and  connections,  are  circumstances  which,  thrown 
into  the  scale,  may  give  it  a  decisive  preponderance.^  Therefore, 
where  a  man  came  from  another  place  to  reside  in  Pennsylvania, 
introdiLccd  his  fiimily  there,  took  a  house,  engaged  in  trade,  and 
contracted  debts,  he  was  held  to  be  an  inhabitant,  so  as  to  be  the 
subject  of  domestic,  and  not  of  foreign,  attachment.^  So,  where 
an  unmarried  man  came  to  Philadelphia,  took  lodgings,  and  rent- 
ed a  store  in  the  city,  where  he  carried  on  trade,  and  frequently 
declared  his  intention  of  taking  up  a  permanent  residence  in  the 
city,  he  was  held  to  be  an  inhabitant.*  And  while  a  man  thus  re- 
mains, he  is  to  be  regarded  as  a  resident  of  the  place,  though  he 
avow  an  intention  to  withdraw  from  it ;  ^  and  though  he  go  away, 
stating  that  he  intends  to  go  to  another  State,  but  is  absent  only  a 
short  time,  and  does  not  leave  the  State  in  which  he  has  resided.^ 
And  so,  though  he  go  into  another  State  to  seek  another  residence. 
In  such  case  he  does  not  become  a  non-resident  until  the  fact  and 
intention  unite  in  another  abode  elsewhere.'^ 

§  63.  It  follows  from  these  views  of  what  constitutes  a  resident 
or  inhabitant,  that  change  of  abode,  sine  animo  revertendi,  makes 
one  immediately  a  non-resident  of  the  place  from  which  he  de- 
parts.^ Therefore,  where  a  person  resided  and  carried  on  business 
in  New  York  for  several  years,  and  becoming  embarrassed  and 
unable  to  pay  his  debts,  determined  to  leave  this  country  for  Eng- 

1  Heidenbach  v.  Schland,  10  Howard  Pract.  K.  477. 

2  Guier  v.  O'Daniel,  1  Binney,  349,  note. 

3  Barnet's  Case,  1  Dallas,  152  ;  Thurneyssen  v.  Vouthier,  1  Miles,  422. 
*  Kennedy  v.  Baillie,  3  Yeates,  55. 

6  Lyle  V.  Foreman,  1  Dallas,  480 ;  Bainbridge  v.  Alderson,  2  Browne,  51 ;  Smith  v. 
Story,  1  Humphreys,  420 ;  Stratton  v.  Brigham,  2  Sneed,  420. 

6  Shipman  v.  Woodbury,  2  Miles,  67  ;  Wheeler  v.  Degnan,  2  Nott  &  McCord,  323. 

7  Pfoutz  V.  Comford,  36  Penn.  State,  420. 

8  Moore  v.  Holt,  10  Grattan,  284. 

[38] 


CHAP,  m.]       DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §  63  a 

laud,  and  did  actually  leave,  taking  with  liim  his  effects,  without 
any  intention  of  returning,  he  was  held  to  be  no  longer  an  inhab- 
itant of  New  York.''     So,  where  one  had  acquired  a  residence  in 
Philadelphia,  and  sailed  thence  to  the  West  Indies  as  supercargo 
of  a  vessel,  taking  with  him  four  fifths  of  his  property,  having  pre- 
viously executed  an  assignment  of  the  rest  of  it  for  the  benefit  of 
creditors  ;  and  engaged  in  trade  in  the  West  Indies,  where  he  was 
seen  by  persons  who  understood  from  him  that  he  did  not  intend 
to  return  soon,  and  his  letters  had  been  for  nine  months  silent  as 
to  his  return  ;  he  was  considered  to  be  no  longer  an  inhabitant  of 
the  State,  and  his  property  was  subjected  to  a  foreign  attachment, 
though  when  he  went  away  he  expressed  his  purpose  to  return  in 
twelve  or  eighteen  months.^     So,  wliere  one  resided  a  few  months 
in  Philadelphia,  and  then  proceeded  to  Virginia,  whence  he  sailed 
for  England,  in  consequence  of  receiving  intelligence  of  the  mis- 
conduct of  a  partner  there,  but  declaring  his  intention  to  return  in 
the  ensuing  spring  ;  it  was  considered  that  he  had  ceased  to  be  an 
inhabitant  of  Pennsylvania,  and  was  subject  to  foreign  attachment.^ 
So,  where  a  resident  of  Kentucky  stated  that  he  had  purchased 
land  in  Missouri,  and  intended  to  go  there  in  the  fall  to  live  ;  and 
persuaded  an  acquaintance  to  go  with  him  and  settle  in  his  neigh- 
borhood ;  and  did  go  away  in  the  fall,  and  was  absent  when  the 
suit  was   brought ;  it   was   held    sufficient  to  justify  proceeding 
against  him  by  attachment  as  a  non-resident,  though  he  returned 
a  month  after  the  suit  was  brought.*     So,  where  one  left  Indiana 
under  false  pretexts,  leaving  his  family  ignorant  of  the  cause  of 
his  flight,  and  the  place  of  his  destination  ;  and  was  absent  for 
more  than  two  months,  when  a  suit  by  attachment  was  brought 
against  him  as  a  non-resident,  and  was  gone  about  a  year  altogeth- 
er, and  during  that  time  was  in  Nevada  Territory,  and  there  was 
nothing  showing  an  intention  to  return,  but  circumstances  author- 
izing the  contrary  inference  ;  it  was  held,  that  it  might  bo  inferred 
that  he  had  left  Lidiana,  and  located  in  Nevada,  with  the  intention 
of  making  his  home  in  that"  Territory.^ 

§  63  a.    As  a  change  of  abode,  sine  animo  revertendi,  is  necessary 
to  make  one  a  non-resident  of  the  place  from  which  he  departs,  it 

1  Matter  of  Wrigley,  4  "Wendell,  602  ;  8.  c.  8  Wendell,  134. 

2  Nailor  v.  French,  4  Yeates,  241.  *  Farrow  v.  Barker,  3  B.  Monroe,  217. 
8  Taylor  v.  Knox,  1  Dallas,  158.  ^  McCollem  v.  White,  23  Indiana,  43. 

•^  [39j 


§  65  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CHAP.  IH 

follows  that  tlie  enlistment  of  one  in  the  volunteer  military  servico 
of  the  United  States,  or  his  being  drafted  into  it,  and  his  departure 
from  the  place  of  liis  domicile  to  a  point  out  of  the  State,  in  the 
performance  of  military  duty,  with  an  intention  to  return  at  the 
cxpii-ation  of  his  term  of  service  to  his  former  abode,  cannot  have 
the  efi'ect  of  making  him  a  non-resident.^ 

§  64.  When  an  individual  departs  from  his  place  of  abode  in 
one  State,  with  the  intention  of  taking  up  his  residence  in  another 
State,  at  what  point  of  time  is  he  to  be  regarded  as  a  non-resident 
of  'the  State  in  which  he  has  been  domiciled  ?  Can  he  be  so 
considered  before  he  passes  the  boundary  of  that  State  ?  This 
question  arose  in  Virginia,  under  a  statute  authorizing  an  attach- 
ment "  against  a  person  who  is  not  a  resident  of  this  State."  The 
defendant  left  "Winchester  at  nine  o'clock,  A.  M.,  and  went  by  rail- 
road to  Harper's  Ferry,  where  he  remained  until  between  half  past 
two  and  three  o'clock,  P.  M.,  when  he  took  the  cars  for  Baltimore, 
intending  to  go  directly  on  to  Philadelphia,  where  he  purposed 
residing.  Between  ten  and  eleven  o'clock,  a.  m.,  of  that  day,  an 
attachment  was  taken  out  and  immediately  executed.  Tiie  point 
was  raised  whether,  at  that  time,  the  defendant,  being  still  within 
the  limits  of  the  State,  had  become  a  non-resident ;  and  the  Court 
of  Appeals  held  that  he  had.^  But  in  New  Jersey  the  contrary 
was  held.  There  the  defendant  had  moved  his  goods  and  chattels 
out  of  the  house  he  had  been  occupying  to  a  canal-boat,  with  the 
intention  of  taking  them  and  his  family  to  another  State  ;  and 
while  some  of  the  goods  were  on  the  boat,  some  on  the  wharf, 
ready  to  be  put  on  board,  and  others  on  the  premises,  and  in 
U'ansitu  from  the  premises  to  the  boat,  an  attachment  was  taken 
out  on  the  ground  that  he  was  "  not  resident  in  this  State  at  this 
time."  The  court  held,  that  at  most  there  was  but  an  intention  to 
rmiove,  which,  without  the  fact  of  an  actual  removal,  did  not  make 
the  defendant  a  non-resident.^ 

4 

§  65.  The  Court  of  Appeals  of  New  York  recognized  the  com- 
patibility of  domicile  in  that  State  with  actual  non-residence,  so  as 
to  authorize  the  party  to  be  proceeded  against  by  attachment  as  a 

1  Tibbitts  V.  Townsend,  15  Abbott  Pract.  R.  221. 

2  Clark  V.  Ward,  12  Grattan,  440.     See  Spalding  v.  Simms,  4  Metcalfe  (Ky.),  285. 
^  Kugler  V.  Shreve,  4  Dutcher,  129. 

[40] 


CHAP,  m.]       DEBTORS,  ABSENT,  ARSCONDING,  ETC.    »        §  66 

jion-residcnt,  even  when  the  intention  to  return  existed,  and  there 
was  no  abandonment  of  domicile.  This  was  only  an  extended  ap- 
plication of  the  doctrine  held  in  that  State,  in  the  case  above 
cited ,^  as  applied  to  absent  debtors.  In  the  case  now  referred  to, 
the  defendant  was  proceeded  against  as  a  non-resident.  On  his 
behalf  it  was  offered  to  be  proved,  that  he  was  not  a  non-resident 
of  New  York  when  the  attachment  was  taken  out,  but  a  resident 
thereof ;  and  that  he  had  been  absent  about  three  years,  attending 
to  a  lawsuit  at  New  Orleans,  and  returned  thence  to  New  York 
after  the  attachment  was  obtained.  This  evidence  was  excluded 
by  the  judge,  because  the  offer  itself  showed  the  defendant  to  be  a 
non-resident  at  the  time  the  attachment  issued  ;  and  the  Court  of 
Appeals  sustained  this  ruling,  and  held  that  the  defendant  was  a 
non-resident  when  the  attachment  issued,  although  domiciled  in 
New  York.'^  The  doctrine  of  this  case  was,  substantially,  adopted 
in  Maryland.^ 

§  Go  a.  The  legal  residence  of  a  wife  follows  that  of  her  hus- 
band, though  she  may  not  actually  reside  at  the  place  of  his 
domicile  ;  and  hence  she  may,  conjointly  with  her  husband,  be 
proceeded  against  by  attachment,  as  a  non-resident  of  the  State  in 
which  she  actually  resides,  if  he  be  a  resident  of  another  State. 
This  was  held  in  a  case  where  tlie  wife  was,  before  marriage,  a 
resident  of  New  Jersey,  and  was  married  there  to  a  resident  of 
New  York.  After  the  marriage  they  went  abroad  to  Europe,  and 
during  their  absence  an  attachment  was  sued  out  against  them  as 
non-residents,  for  a  debt  contracted  by  the  wife  dum  sola.  It  was 
her  intention,  when  she  went  abroad,  to  return  to  her  place  of  res- 
idence in  New  Jersey  and  continue  her  residence  there  for  a  time, 
and  on  her  return  she  carried  out  that  intention  ;  her  husband 
visiting  her  on  Saturdays,  coming,  for  that  purpose,  from  New 
York,  where  he  did  business,  and  returning  the  next  week  to  New 
York.  Siie  was  held  to  be  a  non-resident  of  New  Jersey,  so  as  to 
authorize  the  attachment.* 

§  66.   In  connection  with  the  non-residence  of  one  member  of  a 

1  Matter  of  Thompson,  1  Wendell,  45. 

2  Haf^gart  v.  Morgan,  1  Selden,  422  ;  Frost  v.  Brisbin,  19  "Wendell,  11.  Sed  contra, 
Brundred  v.  Del  Hoyo,  Spencer,  328.  See  remarks  of  Roosevelt,  J.,  in  Hurlbut  v. 
Seeley,  11  Howard  Pract.  R.  507. 

8  Risewick  v.  Davis,  19  Maryland,  82. 

••  Ilackettstown  Bank  v.  Mitchell,  4  Dutcher,  516. 

[411 


§  G9  I        DEBTOnS,  ABSENT,  ABSCONDDsG,  ETC.  [CEIAP.  IlL 

firm,  the  question  arises,  whether,  on  a  firm  debt,  an  attachment 
against  liim  may  be  levied  on  the  partnership  effects.  This  de- 
pends upon  wliether,  in  the  State  in  which  the  firm  exists,  a  joint 
liability  is  declared  by  statute  to  be  joint  and  several.  If  so,  the 
non-resident  partner  may  be  sued  by  attachment,  and  the  attach- 
ment may  be  levied  on  partnership  effects  ;  ^  but  if  the  rule  of  the 
common  law,  that  partners  must  be  sued  jointly,  be  unaltered,  it 
cannot.''^ 

§  G7.  The  remedy  by  attachment  against  a  non-resident  is  not 
annulled  or  suspended  by  his  accidental  or  transient  presence  with- 
in the  State; 3  nor  by  the  fact  that  he  has  a  commercial  domicile  — 
that  is,  is  engaged  in  bnsiness  —  therein,  when  his  personal  dom- 
icile is  in  another  State.*  Therefore  where  a  defendant  had  all  his 
bushiess  and  property  in  the  State  of  New  York,  and  all  his  busi- 
ness capital  and  his  bank  account  in  the  city  of  New  York,  where 
he  was  engaged  in  business,  and  where  he  spent  on  an  average 
eight  hours  of  every  business  day  ;  but  for  reasons  of  convenience 
and  economy,  maintained  his  family  in  Jersey  City,  in  the  State 
of  New  Jersey,  and  spent  with  them  there  his  nights  and  Sun- 
days ;  it  was  held,  that  he  was  not  a  resident  of  the  State  of  New 
York.5 

§  68.  In  many  of  the  States  statutory  provisions  exist,  author- 
izing attachments  to  issue,  where  a  debtor  is  about  to  remove  his 
property  out  of  the  State,  or  to  dispose  of  it  so  as  to  defraud  his 
creditors.  We  will  give  attention  to  the  cases  which  have  arisen 
under  provisions  of  this  description. 

§  69.  Debtors  removing  their  Property.  In  Louisiana,  under  a 
statute  authorizing  an  attachment  where  "  the  debtor  is  about  to 
remove  his  property  out  of  the  State  before  the  debt  becomes  due," 
it  was  decided  that  the  statute  must  be  understood  to  apply  to 
property  which  the  creditor  might  have  supposed  would  not  be 

1  Greene  v.  Pyne,  1  Alabama,  235;  Conklin  v.  Harris,  5  Ibid.  213. 

2  Wiley  V.  Sledge,  8  Georgia,  532. 

■  8  Bryan  v.  Dunseth,  1  Martin,  n.  s.  412  ;  Jackson  v.  Perry,  13  B.  Monroe,  231. 
*  RajTie  V.  Taylor,  10  Louisiana  Annual,  726. 

5  Barry  v.  Bockover,  6  Abbott  Pract.  R.  374 ;  Potter  v.  Kitchen,  Ibid.  374,  note ; 
Lee  V.  Stanley,  9  Howard  Pract.  R.  272 ;  Houghton  v.  Ault,  16  Ibid.  77  ;  Chaine  v. 
Wilson,  Ibid.*552. 
[42] 


CHAP.  III.]  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  S  70  a 


carried  out  of  the  State,  and  to  which  he  might  have  looked  for 
his  security  at  the  time  of  contracting,  or  since  ;  but  that  it  would 
be  unreasonable  to  extend  it, to  a  species  of  property  which,  from 
its  nature  and  destination,  must  necessarily  be  taken  out  of  the 
State,  and  which  the  creditor  could  not  have  believed  would  re- 
main continually  within  its  limits.  Therefore,  where  a  delator  was 
the  owner  of  a  steamboat,  which  he  had  purchased  from  the  plain- 
tiff, and  for  part  of  the  purchase-money  had  given  notes  to  the 
plaintiff,  secured  by  a  mortgage  on  the  boat,  which  notes  were  not 
yet  due  ;  and  after  the  giving  of  the  notes,  he  had  been  running 
the  Ijoat  regularly  in  a  particular  trade,  which  necessarily  took 
her  out  of  the  State  ;  it  was  considered,  that  the  fact  of  the  de- 
fendant bcing*about  to  take  her  away  on  one  of  her  regular  trips, 
without  any  fraud,  or  intention  to  defraud,  being  alleged,  was  not 
sufficient  to  justify  an  attachment,  on  the  statutory  ground  above 
cited. ^ 

§  70.  In  Illinois,  where  the  statute  authorized  an  attachment 
when  the  debtor  "  is  about  to  remove  his  property  from  this  State 
to  the  injury  of  such  creditor,"  an  attachment  was  obtained  on 
that  ground  against  two  debtors,  and  levied  on  a  quantity  of  pig 
iron,  which  was  all  the  puj-sonal  property  owned  by  the  defendants 
in  tlie  county,  at  the  time  the  writ  issued.  The  defendants  filed  a 
plea  in  abatement,  traversing  the  allegation  of  the  affidavit.  On 
the  trial  of  this  plea,  they  offered  to  prove  that  one  of  them  owned 
a  large  amount  of  personal  property  in  the  State,  free  from  any 
incumbrance,  and  more  than  sufficient  to  discharge  the  plaintiff's 
demand.  The  court  excluded  this  evidence;  but  the  Supreme 
Court  held  this  exclusion  to  be  erroneous.  They  considered  that, 
not  only  must  there  be  a  removal  of  the  property  of  the  defend- 
ants, but  it  must  be  to  the  injury  of  the  plaintiff;  and  that  the 
proof  offered  was  competent,  as  tending  to  show  that  the  removal 
would  not  operate  to  the  plaintiff's  injury .^ 

§  70  a.  In  Mississippi,  an  attachment  was  obtained  on  the 
ground  tliat  the  defendant  was  "  about  to  remove  his  property 
out  of  this  State."  The  defendant  plead  in  abatement,  denying 
the  allegation  of  the  affidavit.     On  the  trial  under  this  plea,  it 

1  Russell  V.  Wilson,  18  Louisiana,  367. 

2  White  V.  Wilson,  10  Illinois  (5  Gilman),  21 ;  Ridgway  v.  Smith,  17  Iljid.  33. 

[43] 


§  71  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CEIAP.  m. 

appeared  that  the  defendant,  in  pursuance  of  a  previously  ex- 
j)rcssed  purpose,  had  removed  a  part  of  his  ])roperty  to  Louisiana, 
hut  that  at  tlic  time  of  the  attacluuent  he  liad,  in  Mississij)pi,  real 
and  personal  property,  more  than  sufficient  to  pay  all  his  liahili- 
ties  in  that  State,  wliich  ho  did  not  remove,  or  intend  to  remove. 
The  court  held,  that  in  such  case  an  attachment  would  not  lie ; 
and  the  grounds  of  its  decision  were  thus  stated :  "  The  ohject 
of  the  statute  is  to  afford  to  the  creditor  a  security  for  his  deht, 
in  case  the  dehtor  is  ahout  to  remove  his  property  out  of  this 
State,  so  as  to  deprive  the  creditor  of  the  collection  of  his  deht  in 
this  State.  The  principle  upon  which  the  statute  proceeds,  is  the 
davger  of  loss  of  the  deht  hy  the  removal  of  the  defendant's  property; 
and  this  reason  fails,  and  the  remedy  provided  hy  the  statute 
plainly  does  not  apply,  where  the  debtor  is  removing  a  part  of  his 
property,  but  does  not  remove,  or  intend  to  remove,  another  part 
of  it,  subject  to  the  payment  of  the  debt,  amply  sufficient  to  sat- 
isfy it,  and  accessible  to  the  creditor's  execution,  and  such  por- 
tion of  his  property  remains  in  his  possession  openly  subject  to 
execution.  For,  when  property  to  such  an  amount,  and  so 
situated,  remains  in  the  possession  of  the  debtor,  and  is  not 
about  to  be  removed  from  the  State,  it  could  not  be  justly  said 
that  the  creditor's  debt  would  be  in  danger  of  being  lost,  by 
the  removal  of  another  part  of  the  debtor's  property  from  the 
State."! 

§  71.  In  Tennessee,  under  a  law  allowing  an  attachment  where 
a  debtor  "  is  removing,  or  about  to  remove  himself  or  his  prop- 
erty beyond  the  limits  of  this  State,"  an  attachment  was  obtained 
against  the  owner  of  a  steamboat,  on  the  allegation  that  he  was 
"  about  to  remove  the  said  steamboat  beyond  the  limits  of  this 
State."  The  court  intimated  that  the  designation  of  only  a  par- 
ticular piece  of  property,  as  about  to  be  removed,  if  it  stood  alone, 
would  not  be  sufficient  to  authorize  the  attachment ;  and  that  the 
affidavit  ought  to  use  the  words  of  the  statute,  or  should  exclude 
the  idea  that  other  property  might  still  be  left  by  the  defendant, 
within  the  jurisdiction,  amply  sufficient  to  satisfy  the  demand ; 
but  considering  the  allegation  that  the  defendant  was  about  to 
remove  his  boat  equivalent  to  the  assertion  that  he  was  about  to 
remove  himself,  the  attachment  was  sustained.^ 

1  Montague  v.  Gaddis,  37  Mississippi,  453.    ^  Eunyan  v.  Morgan,  7  Humphreys,  210. 
[44] 


CHAP.  HI.]       DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §  73 

§  71  a.  Debtors  fraudulently  disposing  of  their  property .  In  many 
States  an  attachment  is  authorized  upon  affidavit  that  the  defend- 
ant has  made,  or  is  about  to  make,  some  fraudulent  disposition  of 
his  property.  The  i)articular  terms  of  the  different  statutes  on 
this  sul»ject  are  set  forth  in  the  Appendix,  and  will  not  be  referred 
to  here,  except  in  connection  with  the  reported  cases.  But  there 
is  one  phrase,  — "his  property,"— which  is  common  to  them  all, 
and  the  scope  of  which  should  be  determined.  This  was  done  by 
the  Supreme  Court  of  Xew  York,  in  a  case  where  the  ground  of 
the  attachment  was,  that  the  defendant  had  stolen,  secreted,  or 
embezzled  money  of  the  plaintiff  to  the  amount  of  85,000  and 
ui)wards ;  that  he  said  he  had  deposited  part  of  the  proceeds  in 
the  name  of  a  little  sister,  and  acknowledged  that. he  did  this  to 
avert  suspicion,  and  to  prevent  the  property  being  taken  from  him, 
and  to  conceal  it.  It  was  contended  that  an  attachment  did  not 
lie,  because  the  proi>erty  which  he  so  concealed  was  not  his ;  but 
the  court  sustained  the  attachment,  and  said:  "Tlie  Code  speaks 
of  the  secreting  of  the  defendant's  property.  By  that  was  meant 
any  property  in  his  possession,  and  to  which  he  claimed  title, 
although  his  title  was  imperfect  or  clearly  bad.  The  injury 
to  the  creditor,  and  the  intent  to  defraud,  are  as  clearly  shown 
in  that  case,  as  if  the  defendant  had  a  perfect  title  to  the  prop- 
erty. "  ^ 

§  72.  In  Missouri,  an  attachment  was  issued,  upon  affidavit 
that  the  defendant  had  fraudulently  conveyed,  assigned,  con- 
cealed, and  disposed  of  his  property  and  effects,  so  as  to  hinder, 
delay,  and  defraud  his  creditors.  The  defendant  pleaded  in 
abatement,  traversing  the  allegations  of  the  affidavit.  On  the 
trial  it  appeared  that,  just  before  the  attachment  issued,  the  de- 
fendant had  sold  his  entire  stock  of  goods  to  a  person  to  whom  he 
was  indebted,  for  the  purpose  of  paying  his  debt ;  and  it  was  held, 
that  such  a  sale  was  not  to  be  considered  fraudulent,  although  the 
defendant,  about  the  time  it  was  effected,  made  false  representa- 
tions as  to  his  condition  and  intentions,  unless  the  vendees  were 
parties  to  the  fraud.^ 

§  73.    In  the  same  State  this  case  arose.     An  attachment  was 

1  Treaihvell  v.  Lawlor,  15  Howard  Pract.  R.  8. 
3  Chouteau  i;.  Sherman,  11  Jlissouri,  385. 

[451 


§  74  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CIIAP.  HI. 

sued  out,  on  the  ground  that  the  defendant  "  had  fraudulently 
conveyed,  assigned,  removed,  concealed,  and  disposed  of  his  })rop- 
crty  and  effects,  so  as  to  hinder,  defraud,  and  delay  his  creditors, 
and  that  he  was  about  to  do  those  things."  A  plea  in  abatement 
was  filed  putting  in  issue  the  truth  of  the  affidavit.  On  the  trial 
it  appeared  that  the  defendant,  being  indeltted  to  the  j)laintiff  and 
others,  was  permitted  by  them  to  take  a  certain  amount  of  goods, 
under  a  written  agreement  to  make  a  weekly  account  of  his  sales, 
and  pay  over  the  proceeds,  after  deducting  certain  charges;  and 
that  he  made  on  one  occasion  a  considerable  sale  of  goods  for 
cash,  of  which  he  made  no  return.  The  court  instructed  the 
jury  that  "  the  concealment  contemplated  by  the  statute,  means 
secreting  goods,  and  not  concealment  of  circumstances,  or  mis- 
representation of  facts,  and  that  this  last-mentioned  conduct  is  no 
ground  for  issuing  an  attachment."  This  was  held  by  the  Su- 
preme Court  to  be  erroneous.  "  That  instruction,"  said  tho 
court,  "  declares  that  the  concealment  referred  to  in  the  statute 
must  be  a  concealment  of  goods,  and  not  of  facts  and  circum- 
stances. This  distinction  we  confess  ourselves  unable  to  appreci- 
ate. If  the  defendant  had  packed  away  in  his  cellar  goods  to  the 
value  of  one  thousand  dollars,  with  a  view  to  defraud  his  creditors 
and  prevent  them  from  collecting  their  debts,  this  is  conceded  to 
be  a  fraud  within  the  .meaning  of  the  statute ;  but  if  he  sells  the 
same  goods,  and  puts  the  money  in  his  pocket,  with  the  same 
intent  of  cheating  his  creditors  by  the  operation,  it  is  regarded 
as  a  mere  concealment  of  circumstances  we  suppose,  and  there- 
fore not  such  a  concealment  as  is  reached  by  the  attachment  law. 
The  statute  uses  the  phrase  '  goods  and  effects.'  The  money  for 
which  the  goods  were  sold  by  the  defendant  was  as  capable  of 
being  concealed  as  the  goods  were,  and  the  concealment  of  the 
money  is  surely  not  less  a  fraud,  because  it  was  accompanied 
with  a  concealment  and  misrepresentation  of  facts  and  circum- 
stances." ^ 

§  74.  An  attachment  was  obtained  in  Missouri,  on  the  gi'ound 
that  the  defendant  had  fraudulently  conveyed  his  property,  and 
was  about  to  conceal  or  dispose  of  his  property  so  as  to  hinder 
and  delay  his  creditors.  The  defendant  denied  these  allegations. 
On  the  trial,  it  was  shown  that  he  had,  previous  to  the  issue  of 

1  Powell  V.  Matthews,  10  Missouri,  49. 
[46] 


CHAP.  Ill  ]  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §  75 

the  attachment,  confessed  a  judgment  in  favor  of  another  party, 
upon  which  execution  was  issued,  and  when  the  sheriff  went  to 
defendant's  store  to  levy  the  same,  he  found  there  tlie  execution 
plaintiff,  who,  after  some  conversation  with  the  defendant,  in- 
structed the  sheriff  to  suspend  a  levy  until  further  orders ;  and 
tliat  notliing  was  done  under  the  execution,  until  the  attachment 
was  placed  in  the  hands  of  the  sheriff,  when  the  execution  plaintiff 
directed  a  levy.  This  was  held  by  the  court  to  be  a  fraudulent 
disposition  of  his  property  by  the  defendant ;  and  it  was  further 
held,  that  the  declarations  of  the  execution  plaintiff  in  connection 
with  the  transaction  miglit  be  given  in  evidence  against  the  de- 
fendant.^ 

In  the  same  State  an  attachment  was  obtained,  on  the  ground 
that  the  defendant  "  had  fraudulently  conveyed  or  assigned  his 
property  or  effects  so  as  to  hinder  or  delay  his  creditors."  The 
evidence  showed  a  conveyance  by  the  defendant  of  a  stock  of 
goods  to  C.  to  secure  and  pay  debts  to  R.,  which  conveyance  the 
plaintiff  endeavored  to  show  was  made  fraudulently,  so  as  to  hin- 
der and  delay  his  creditors.  It  was  held  unnecessary,  in  order  to 
sustain  the  attachment,  to  show  that  the  trustee  and  the  cestui  que 
trust  acted  in  bad  faith  ;  but  that  if  the  defendant  acted  with  a 
fraudulent  intent  in  making  the  deed,  it  was  sufficient ;  and  that 
his  statements,  made  shortly  after  the  execution  of  the  deed, 
might  properly  be  given  in  evidence  to  show  the  intent  with  which 
he  made  it.^  And  in  a  subsequent  case  it  was  decided,  that  in 
making  such  a  conveyance  the  fraudulent  intent  must  be  shown  to 
have  existed,  in  order  to  sustain  the  attachment,  and  that  it  was 
not  sufficient  merely  to  show  that  the  effect  of  the  conveyance  was 
to  hinder  and  delay  creditors.^ 

In  the  same  State,  where  an  attachment  was  obtained  on  the 
ground  that  the  defendant  was  about  fraudulently  to  conceal,  re- 
move, or  dispose  of  his  property  or  effects  so  as  to  hinder  or  delay 
his  creditors,  it  was  held  not  necessary  to  show  that  he  was  about 
so  to  dispose  of  all  his  property,  but  that  the  attachment  would  be 
sustained,  if  he  was  about  so  to  dispose  of  any  part  of  it.^ 

§  75.  In  New  York,  under  a  statute  which  allowed  an  attach- 
ment to  issue,  "  when  it  shall  satisfactorily  appear  to  the  justice 

1  Field  V.  Livermore,  17  Missouri,  218.         8  Spencer  v.  Deagle,  34  Missouri,  455. 
a  Enders  r.  Ricliards,  33  Missouri,  598.         *  Taylor  i;.  Myers,  34  Missouri,  81. 

[47] 


§  T5  a  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CIIAP.  IH. 

that  the  defendant  is  about  to  remove  from  the  county  any  of  his 
property,  with  the  intent  to  defraud  his  creditors,  or  has  assigned, 
disposed  of,  or  secreted,  or  is  about  to  assign,  dispose  of,  or  secrete 
any  of  his  property  with  the  like  intent,"  an  attachment  was  is- 
sued, upon  aflfidavits  specifying  several  causes,  among  which  was, 
that  the  defendant  was  about  to  dispose  of  his  property  with  intent 
to  defraud  his  creditors.  The  affidavit  assigned  tho  existence  of 
the  following  facts  as  evidence  of  that  intent :  that  the  defendant 
left  the  county  of  Chemung  two  months  before,  and  went  to  the 
province  of  Upper  Canada,  with  intent  to  remain  there,  and  had 
taken  with  him  some  portion  of  his  personal  property ;  that  he 
had  no  family,  and  but  little  property ;  that  he  was  offering  his 
property  in  Chemung  county  for  sale ;  that  he  told  the  plaintiff 
that  he  would  be  damned  glad  if  he  ever  got  his  pay  of  him  ;  that 
no  civil  process  could  be  served  on  him,  because  he  kept  out  of 
the  State ;  and  that  he  refused  to  pay  anything  on  the  plaintiff's 
debt.  It  was  held,  that  these  facts  proved  a  strong  case  of  intent 
to  dispose  of  property  to  defraud  creditors.^ 

§  75  a.  In  New  York  an  attachment  was  obtained,  on  the 
ground  that  the  defendant  was  "  about  to  assign  or  dispose  of  his 
property,  with  intent  to  defraud  his  creditors."  In  support  of  the 
attachment,  evidence  was  given  of  threats  of  the  defendant  to 
make  an  assignment  of  his  property,  and  that  plaintiff  would  get 
nothing,  and  to  put  his  property  out  of  his  hands  sooner  than  pay 
more  than  one  third  of  his  debts ;  and  on  the  plaintiff's  refusing 
to  take  less  than  the  amount  of  his  claim,  the  defendant  threat- 
ened to  go  home  and  put  his  property  out  of  his  hands.  In  the 
Supreme  Court,  at  Special  Term,  Ingraham,  J.  held  this  evidence 
to  warrant  the  presumption  of  a  fraudulent  intent ;  ^  but  at  Gen- 
eral Term  this  decision  was  reversed,  on  the  ground  that  the 
threat  of  the  defendant  to  make  an  assignment  of  his  property, 
was  a  threat  to  do  a  lawful  act ;  and  that  the  attachment  could 
not  be  sustained  without  presuming  an  evil  intent,  which  is  con- 
trary to  the  principle  that  we  are  not  to  presume  wrong  until 
wrong  is  plainly  indicated ;  and  that  the  conduct  of  the  defendant 
in  subsequently  making  a  legal  and  valid  assignment  of  his  prop- 
erty, was  a  fact  to  be  considered  as  indicating  the  intent  of  the 

1  Rosenfield  v.  Howai-d,  15  Barbour,  546. 

2  Wilson  V.  Britton,  6  Abbott  Pract.  R.  33. 

[48] 


CHAP,  in.]  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  §77 

previous  threat.^  But  in  a  subsequent  similar  case,  where  it  ap- 
peared that  the  defendant's  assets  were  more  than  sufficient  to 
pay  all  the  other  claims  against  him  than  that  sued  on,  and  that 
he  only  tvanted  time  to  pay  all  his  debts,  it  was  held,  that  the  threat- 
ened assignment  must  have  been  intended  to  be  fraudulent,  or  an 
instrument  of  fraud  ;  and  the  attachment  was  sustained.^  And 
where  a  debtor  refused  to  pay  his  note  on  demand,  and  was  told  by 
the  creditor  that  he  would  be  sued ;  and  he  thereupon  threatened, 
if  he  was  sued,  "  to  turn  over  all  his  property,  and  that  the  cred- 
itor would  n't  get  a  cent " ;  it  was  held,  that  this  threat  evidenced 
an  intention  to  dispose  of  his  property  so  as  to  baflle  the  creditor 
in  the  speedy  collection  of  his  debt,  and  the  attachment  was  sus- 
tained.^ It  will  be  observed  that  this  case  differs  from  those  just 
referred  to  in  this  connection,  in  that  the  threat  was  not  to  put  his 
property  out  of  his  hands  by  making  an  assignment.  This  differ- 
ence was  recognized  by  the  court,  which  said  that  cases  in  which 
the  only  threat  was  to  make  merely  a  lawful  assignment,  were  in- 
applicable to  this  case. 

§  76.  Where  an  attachment  in  cliancery  was  obtained,  upon 
the  complainant  alleging  his  belief  that  the  defendant  would  sell, 
convey,  or  otherwise  dispose  of  his  property,  with  the  intent  to 
hinder,  delay,  and  defraud  the  complainant,  unless  prevented  by 
attachment;  it  was  lield,  that  the  fraudulent  intent  must  be  shown 
to  have  existed  before  the  suing  out  of  the  attachment ;  and  that 
to  prove  it  to  have  originated  afterwards  was  not  sufficient.* 

§  77.  In  Iowa,  under  an  affidavit  that  "  the  defendant  is  in 
some  manner  about  to  dispose  of,  or  remove  his  property  with 
intent  to  defraud  his  creditors,"  evidence  of  acts  done  by  him  ten 
years  before,  in  another  State,  was  held  not  admissible  or  relevant 
to  prove  the  truth  of  the  affidaWt.  "  However  competent  such 
evidence  might  be,"  said  the  court,  "  if  the  plaintiff  had  first 
given  testimony  of  any  fact  or  facts,  which  would  tend  directly  to 
establish,  on  his  part,  the  issue  joined,  in  order  to  strengthen  the 
evidence,  certainly,  until  some  ground  in  fact,  upon  the  issue  thus 

1  Wilson  V.  Britton,  6  Abbott  Pract.  R.  97 ;  Dickinson  v.  Benham,  10  Ibid.  390 ; 
8.  C.  12  Ibid.  158;  19  Howard  Pract.  R.  410. 

2  Gasherie  v.  Apple,  14  Abbott  Pract.  R.  64. 

8  Livermore  v.  Rhodes,  27  Howard  Pract.  R.  506. 
*  Warner  v.  Everett,  7  B.  Monroe,  262. 

4  •  [49] 


§  77  DEBTORS,  ABSENT,  ABSCONDING,  ETC.  [CHAP.  m. 

ioined,  had  been  laid  for  its  operation,  it  was  inadmissible,  being 
Relevant.  To  allow  such  facts  to  be  resuscitated  after  the  lapse 
of  ten  or  twelve  years,  and  made  the  gravamen  of  a  lega^^ proceed- 
ing such  as  this,  would  be  pushing  the  severity  of  the  attachment 
law  to  an  extreme  never  contemplated  by  tlie  legislature. 
1  Lewis  V.  Kennedy,  3  G.  Greene,  57. 
[50] 


CHAP  IV.]   CORPORATIONS  AND  REPRESENTATIVE  PERSONS.      §  79 


CHAPTER    IV. 

LIABILITY   OF   CORPORATIONS   AND   REPRESENTATIVE  PERSONS   TO   BE 

SUED  BY  attach:«ent. 

§  78.  We  have  seen  that  debtors  are  liable  to  be  sued  by  attach- 
ment. This  might  be  supposed  to  include  all  descriptions  of  per- 
sons ;  but  we  find  that  doubts  have  arisen  as  to  the  liability  of 
corporations  to  attachment ;  and  that  there  are  some  descriptions 
of  natural  persons  who  are  exempt  from  it.  "We  will  briefly  con- 
sider these  subjects. 

§  79.  Corporations.  At  an  early  day  the  Supreme  Court  of 
New  York  decided  that,  under  the  law  of  that  State,  an  attach- 
ment did  not  lie  against  a  foreign  corporation.  This  view,  how- 
ever, has  not  been  followed  by  any  court  out  of  that  State ;  but 
the  contrary  doctrine  has  been  announced  in  New  Hampshire, 
Pennsylvania,  Virginia,  Georgia,  Alabama,  Louisiana,  Tennessee, 
Illinois,  and  Missouri,  and  may  now  be  considered  as  settled.^     In 

1  McQueen  v.  Middletown  Man.  Co.,  16  Johns.  5  ;  Libbey  v.  Hodgdon,  9  New  Hamp. 
394;  Bushel  v.  Commonwealth  Ins.  Co.,  15  Sergeant  &  Eawle,  173;  U.  S.  Bank  v. 
Merchants'  Bank,  1  Robinson  (Va.),573;  South  Carolina  R.  R.  Co.  v.  McDonald,  5 
Georgia,  531  ;  Planters  &  Merchants'  Bank  v.  Andrews,  8  Porter,  404  ;  Martin  v. 
Branch  Bank,  14  Louisiana,  415;  Hazard  <;.  Agricultural  Bank,  11  Robinson  (La.), 
326 ;  Union  Bank  v.  U.  S.  Bank,  4  Humphreys,  369  ;  Mineral  Point  R.  R.  Co.  v. 
Keep,  22  Illinois,  9 ;  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  421.  On  this 
subject  the  opposite  views  entertained  will  be  seen  by  the  following  extracts  from  the 
opinions  of  the  courts  of  New  York,  Pennsylvania,  and  Georgia. 

The  grounds  of  the  New  York  decision  are  thus  stated  by  Spenckr,  J. :  "An  at- 
tachment having  been  issued  in  this  case  against  the  estate  of  a  corporation  existing 
in  Middletown,  in  the  State  of  Connecticut,  a  motion  is  now  made  for  a  supersedeas,  on 
the  ground  that  the  statute  for  relief  against  absent  and  absconding  debtors  does  not 
authorize  a  proceeding  against  a  corporation.  The  attachment,  it  has  been  contended, 
may  issue  in  such  a  case  under  the  23d  section  of  the  act.  That  section  enacts  that 
the  real  and  personal  estate  of  every  debtor  who  resides  out  of  this  State,  and  is  in- 
debted within  it,  shall  be  liable  to  be  attached  and  sold  for  the  payment  of  his  debts, 
in  like  manner,  in  all  respects,  as  nearly  as  may  be,  as  the  estates  of  debtors  residing 
within  this  State ;  and  proof  is  required  by  two  witnesses,  of  the  residence  of  such 
debtor  out  of  the  State.  It  cannot  be  doubted  that  this  section  must  be  construed  in 
connection  with  the  other  sections  of  the  act,  and  particularly  with  reference  to  the  first 
and  twenty-first  sections.  The  first  section  regulates  the  amount  of  the  debt  for  which 
an  attachment  may  issue,  and  the  twenty-first  section  provides,  that  if  the  debtor  shall, 
before  the  appointment  of  trustees,  apply  to  the  judge  who  issued  the  attachment,  and 

[-01] 


4 

§  79      CORPORATIONS  AND  REPRESENTATIVE  PERSONS.   [CHAP.  IV. 

several  of  the  States  corporations  are  expressly  subject'ed  by  statute 
to  the  operation  of  the  process. 

give  such  security  as  he  shall  approve,  to  the  creditor  at  whose  instance  the  warrant 
issued,  to  appear  and  plead  to  any  action  to  be  brought,  in  any  court  of  law  or  equity 
in  this  State,  within  si.x.  mouths  tlicreaftcr,  against  him  by  such  creditor,  and  to  pay 
sui'h  sum  as  may  be  recovered  in  such  action,  in  that  case  such  judge  shall  issue  a  sti- 
persfdeas  to  the  warrant.  It  is  very  certain,  that  no  attachment  can  be  issued  under 
tills  act,  against  domestic  corporations,  tor  they  cannot  conceal  themselves,  nor  abscond. 
The  court  have  no  doul)t,  from  a  view  of  the  whole  act,  that  the  legislature  intciuled 
to  authorize  proceedings  under  it  against  natural  persons  only.  The  twenty-first  sec- 
tion supposes,  that  the  person  giving  the  security  to  appear  and  plead  to  any  action  to 
be  bruught  would,  if  witliin  the  State,  be  subject  to  a  suit ;  and  we  think  a  foreign 
corporation  never  could  be  sued  here.  The  process  against  a  corporation  must  be 
served  on  its  head,  or  principal  officer,  within  the  jurisdiction  of  the  sovereignty  where 
this  artilicial  body  exists.  If  the  president  of  a  bank  of  another  State  were  to  come 
within  this  State,  he  would  not  represent  the  corporation  here;  his  functions  and  his 
character  would  not  accompany  him,  when  he  moved  beyond  the  jurisdiction  of  the 
government  under  whose  laws  he  derived  his  character;  and  though,  possibly,  it  would 
be  competent  for  a  foreign  corporation  to  constitute  an  attorney  to  appear  and  plead  to 
an  action  instituted  under  another  jurisdiction,  we  are  clearly  of  the  opinion  that  the 
legislature  contemplated  the  case  of  a 'liability  to  arrest,  but  for  the  circumstance,  that 
the  debtor  was  witliout  the  jurisdiction  of  the  process  of  the  courts  of  this  State;  and 
that  the  act  in  all  its  provi;iions  meant,  that  attachments  should  go  against  natural, 
not  artificial,  or  mere  legal  entities.  The  first  section  speaks  of  persons,  and  through- 
out the  act  natural  persons  only  were  intended  to  be  subjected  to  its  provisions." 

In  Pennsylvania  the  contrary  view  was  taken,  in  an  elaborate  opinion  pronounced 
by  Rogers,  J.,  on  a  motion  to  dissolve  an  attachment  because  the  defendant  was  a 
foreign  corporation.  "  In  order  to  sustain  the  motion,"  said  the  judge,  "  it  will  be 
necessary  for  the  defendants  to  show  that  they  are  not  embraced  by  the  words  and 
spirit  of  the  act.  It  is  difficult  to  conceive  that  if  corporations  are  artificial  persons,  — 
if  they  can  do  all  acts  that  natural  persons  may,  —  if  they  can  sue  within  a  foreign 
jurisdiction,  why  they  should  not  also  be  liable  to  suit,  in  the  same  manner,  and  under 
the  same  regulations  as  domestic  corporations.  The  reason  why  they  have  not  been, 
in  point  of  fact,  more  frequently  sued,  is  given  by  Chief  Justice  Spencer,  in  16 
Johns.  5. 

" '  The  process  against  a  corporation,  by  the  common  law,  must  be  served  on  its 
head  or  principal  officer,  within  the  jurisdiction  of  the  sovereignty  where  this  artificial 
body  exists.  If  the  president  of  a  bank  of  another  State  were  to  come  within  this 
State,  he  would  not  represent  the  corporation  here :  his  functions  and  his  character 
would  not  accompany  him,  when  he  moved  beyond  the  jurisdiction  of  the  government 
iinder  whose  laws  he  derived  his  character.'  That  this  would  be  the  case,  when  he 
was  within  the  State  on  business  unconnected  with  the  corporation,  there  can  be  no 
question ;  but  where  a  corporation  locates  the  president,  or  other  officer,  within  the 
State,  for  the  express  purpose  of  making  contracts  here,  whether  process  served  on 
him  would  not  be  sufficient,  is  a  question  which  I  shall  not  undertake  to  determine, 
because  it  does  not  necessarily  arise.  There  is  nothing,  then,  in  the  nature  of  a  cor- 
poration to  exempt  it  from  suit.  The  difficulty  arises  from  there  being  no  person 
within  the  limits  of  the  State  on  whom  you  can  serve  your  process. 

"  With  the  multiplication  of  corporations,  which  has  and  is  taking  place  to  an  al- 
most indefinite  extent,  there  has  been  a  corresponding  change  in  the  law  in  relation  to 
them.  There  was  a  time  when  it  was  supposed  that  no  suit  could  be  sustained  against 
them,  unless  upon  an  express  contract,  under  the  seal  of  the  corporation.  It  is  now 
held,  that  they  are  liable  in  trespass,  and  in  case,  upon  an  implied  contract.  Tbis 
change  in  the  law  has  arisen  from  a  change  of  circumstances ;  from  that  silent  Icgisla- 
[52] 


CHAP.  IV.]   CORPORATIONS  AND  REPRESENTATIVE  PERSONS.       §  80 

§  80.    The  foreign  character  of  a  corporation  is  not  to  be  deter- 
mined by  the  place  where  its  business  is  transacted,  or  where  the 

tion  by  the  people  themselves,  which  is  continually  going  on  in  a  country  such  as  ours, 
—  the  more  wholesome,  because  it  is  gradual,  and  wisely  adapted  to  the  peculiar  situa- 
tion, wants,  and  habits  of  our  citizens. 

"  The  motion  to  dissolve  the  attachment  is  made  on  the  ground  that  the  defendant 
is  a  foreign  corporation,  and,  as  such,  is  not  within  the  act  of  1705,  nor  liable  to  at- 
tachment by  the  custom  of  London.  The  effect  of  sustaining  the  motion  will  be  to 
deny  the  plaintiifs,  citizens  of  Pennsj-lvania,  all  remedy  in  this  State,  on  a  contract 
made  here,  and  to  deprive  them  of  a  special  lien  on  the  goods  attached.  It  will  be  for 
the  defendants,  then,  to  show  most  clearly,  that  foreign  corporations  do  not  come 
within  the  intention  of  the  laws  regulating  attachments. 

"  When  we  consider  the  number  of  corporations  which  now  exist,  their  continual 
increase,  the  extent  of  their  operations,  the  establishment  of  agents  within  this  State 
for  the  express  purpose  of  making  contracts  here,  it  is  difficult  to  conceive  a  valid 
reason  why  they  should  be  exempted  from  the  operation  of  laws,  which  regulate  the 
contracts  of  individuals  and  domestic  corporations.  They  are  not  such  favorites  in 
courts  of  justice,  as  to  claim  exemption  on  that  ground. 

"  The  reason  of  the  passage  of  the  act  of  1 705  is  set  forth  in  the  preamble  to  be, 
'That  the  laws  of  this  government  have  hitherto  been  deficient  in  respect  of  attach- 
ments, so  that  the  effects  of  persons  absenting  are  not  equally  liable  vnth  those  of  per- 
sons dwelling  upon  the  spot,  to  make  restitution  for  debts  contracted  or  owing  within 
this  province;  to  the  great  injury  of  the  iuhaljitants  thereof,  and  the  encouragement  of 
such  unworthy  persons  as  frequently,  by  absconding,  make  advantage  of  the  defect 
aforesaid.' 

"  In  the  third  section,  '  provided  ahvays,  that  no  writ  of  attachment  shall  hereafter 
be  granted  against  any  person  or  persons'  eflTects,  but  such  only  as  at  the  time  of  grant- 
ing such  writs  are  not  resident  or  residing  within  this  province,  or  are  about  to  remove, 
or  make  their  escape,  out  of  the  same,  and  shall  refuse  to  give  sufficient  security  to  the 
complainant  for  his  debt,  or  other  demand,  before  he  depart  the  said  province.' 

"  It  cannot,  I  think,  be  reasonably  doubted  that  corporations  are  within  the  words  of 
the  act.  "^^^len  the  word  j)erson  is  used  in  a  statute,  corporations  as  well  as  individuals 
are  included.  As,  where  the  inhabitants  of  a  to\ra  are  bound  to  repair  a  bridge,  or  to 
pay  taxes,  corporations,  as  well  as  individuals,  are  liable. 

"  Are  foreign  corporations  within  the  spirit  of  the  act  ?  We  are  so  to  construe  the 
act  as  to  suppress  the  mischief  and  advance  the  remedy.  The  mischief  which  tli'e  legis- 
lature intended  to  remedy  was,  that  the  effects  of  persons,  artificial  or  natural,  who 
were  absent,  were  not  equally  liable  with  those  of  persons,  artificial  or  natural,  dwelling 
upon  the  spot,  to  make  restitution  for  debts  contracted  or  owing  within  tho  province. 
Foreign  corporations  and  foreign  individuals  were  placed  on  a  better  footing  before  the 
passage  of  the  act  than  domestic  corporations  or  citizens  of  the  State ;  for  remedy 
whereof  the  act  in  question  was  passed,  enabling  the  court  to  compel  an  appearance  by 
attachment  of  their  effects  within  the  State. 

"  It  may  be  proper  here  to  remark,  that  the  act  has  been  already  construed  to  extend 
to  persons  who  have  never  been  within  the  State ;  it  has,  therefore,  the  same  applica- 
tion to  corporations  which  are  stationary  as  to  natural  persons.  Foreign  corporations, 
it  is  true,  are  necessarily  absent  from  the  State,  but  may  have  cff'ects  within  it,  and  may 
contract  and  owe  debts,  to  citizens  of  this  State,  which  they  may  be  unable  or  unwil- 
ling to  pay. 

"  It  is  no  answer  to  say,  that  this  is  a  mere  question  of  remedy ;  that  the  corpora- 
tion may  be  sued  in  Massachusetts,  as  in  this  case,  or  in  Europe  or  Canton,  as  the  case 
may  be. 

"  But  suppose  suit  should  be  commenced  within  a  foreign  jurisdiction,  judgment  ob- 
tained, and  execution  issued,  and  the  company  should  prove  insolvent^  (and  daily  ex- 

[53] 


§  80  CORPORATIONS   AND   REPRESENTATIVE   PERSONS.      [CHAP.  IV. 

corporators  reside,  but  by  the  place  where  its  charter  was  granted. 
With  reference  to  inhabitancy,  it  is  considered  as  an  inhabitant  of 

pericnce  shows  us  that  this  is  no  improbable  supposition,)  what  would  be  the  remedy 
against  their  eflFects  within  this  State  !  lielief  must  dejiend  entirely  on  the  laws  of  the 
foreign  government.  If  there  was  power  in  their  courts  to  compel  an  assignment,  or 
to  sequester  their  property,  in  and  out  of  the  State,  there  might  be  some  remedy,  how- 
ever inadeijuate,  to  the  creditor.  I  cannot  bring  myself  to  believe,  that  the  legislature 
ever  intended  that  citizens  of  Pennsylvania,  who  had  the  property  within  their  grasp, 
or  a  lien  upon  it,  should  be  deprived  of  that  lien,  and  depend  for  the  payment  of  their 
debts  on  tiie  laws  of  a  sister  State,  or  of  a  foreign  government,  and  the  more  espeeinlly 
am  I  unwilling  to  adopt  that  construction  at  this  time,  when  this  contract  wa,s  made, 
and  contracts  arc  daily  making  by  foreign  corporations,  within  the  limits  of  this  State, 
and  under  the  jurisdiction  of  this  court.  If  this  were  a  case  of  doubtful  construction, 
the  argument  ab  incoiivenicnti  would  be  exceedingly  strong,  and  would  go  far  with  me 
in  the  determination  of  the  case. 

"  But  it  is  said  that  corporations  are  not  within  the  act,  because  it  is  provided,  '  That 
if  the  plaintirt"  in  the  attachment  obtain  a  verdict,  judgment,  and  execution,  for  the 
money  and  goods  in  the  garnislice's  possession,  yet  the  defendant  in  the  attachment 
mni/,  at  any  time  before  the  money  be  paid,  put  in  bail  to  the  plaintiff's  action,  upon 
which  the  attachment  is  grounded,  whereby  the  garnishee  will  and  shall  be  immediately 
discharged.' 

"  Granting,  merely  for  the  sake  of  the  argument,  that '  bail  to  the  plaintiff's  action,' 
as  used  in  the  act  of  assembly,  means  special  bail  only,  and  agreeing,  as  I  certainly  do, 
that  a  corporation  cannot  enter  special  bail,  yet  it  by  no  means  follows  that  the  effects 
of  foreign  corporations  cannot  be  attached,  under  the  act  of  1705. 

"  This  point  has  undergone  judicial  investigation,  in  the  case  of  Carpentier  v.  TJie 
Delaware  Insurance  Company,  2  Binney,  264.  It  Wius  there  contended,  that  the  plain- 
tiff could  not  enter  a  rule  of  reference,  because  the  defendants  were  a  corporation. 
That  in  every  case  intended  to  be  referred,  an  appeal  was  given  ;  but  that  in  no  case 
could  it  be  obtained  by  the  defendant,  without  entering  into  a  recognizance  conditioned 
to  pay  the  debt  and  costs,  or  to  surrender  him  to  jail.  That  a  corporation  could  not 
give  such  a  recognizance,  because  it  could  not  be  surrendered. 

"From  this  it  was  inferred,  that  corporations  defendants  were  not  within  the  act, 
in  the  same  manner,  and  by  the  same  arguments  as  it  is  here  contended  that  corpora- 
tions are  not  within  the  act  of  1705,  because  bail  to  the  plaintifl^"'s  action  means  special 
bail,  and  that  they  cannot  enter  such  bail.  The  court,  however,  decided  that  the  plain- 
tiffs were  not  prevented  from  entering  a  rule  of  reference ;  which  in  effect  decided  the 
principal  point  in  this  case.  If  bodies  corporate,  say  the  court,  arc  not  within  the  law, 
it  must  be  because  there  is  something  in  their  nature  inconsistent  with  its  provisions ; 
for  they  are  not  expressli/  excepted.  It  is  contended  they  must  be  excepted  by  implica- 
tion, because  they  are  excluded  from  the  benefit  of  an  appeal,  which  is  given  on  con 
dition  incompatible  with  the  nature  of  a  corporation.  '  It  is  clear,'  says  the  Chief 
Justice,  '  that  one  of  the  alternatives  of  this  condition  is  not  applicable  to  a  corporation, 
which  is  not  a  natural,  but  political  body,  incapable  of  being  surrendered  or  imjn'isoned. 
I  agree  that  the  form  of  the  recognizance  is  not  applicable  to  a  body  coi-porate,  but  tioni 
this  I  draw  a  different  conclusion.  I  do  not  infer  that  the  defendant  can  have  no  ap- 
peal, but  that  they  may  have  an  appeal  without  entering  into  any  recognizance.' 

"  In  this  case,  I  do  not  infer  that  the  effects  of  foreign  corporations  cannot  be  at' 
tached,  but  should  infer,  were  it  not  for  considerations  which  I  shall  state,  that  the 
attachment  should  be  dissolved  by  entering  an  appearance  without  bail." 

The  views  of  the  Supreme  Court  of  Georgia  are  as  follows :  — 

"  The  question  is,  whether  a  creditor  is  entitled  to  the  remedy  at  law,  by  attachment, 
against  a  foreign  corporation,  which  our  statutes  give  him  against  a  natural  person, 
who  is  his  debtor. 

"  Persons,  by  non-residence,  and  bv  placing  themselves  in  any  one  of  the  several  pre- 

[54] 


CHAP.  IV.]   CORPORATIONS  AND  REPRESENTATIVE  PERSONS.      §  81 

the  State  in  which  it  was  incorporated.^  And  where,  as  is  some- 
times the  case,  a  corporation  is  chartered  by  two  or  more  States, 
it  is  a  domestic  corporation  in  each  of  them.* 

§  81.  Representative  Persons.  In  New  York,  it  was  held;^in  a 
case  which  arose  at  an  early  period,  that  the  statute  of  that  State 
respecting   absent  debtors   did  not  warrant   proceedings   against 

dicaments  described  in  the  statute,  are  not  amenable  to  the  jurisdiction  of  the  courts, 
by  the  ordinary  process  of  the  law.  In  such  cases,  before  the  passage  of  the  attachment 
laws,  there  was  no  legal  remedy  by  which  the  payment  of  debts  could  be  enforced. 
That  was  the  mischief  to  be  remedied.  These  laws  supplied  the  remedy.  The  attach- 
ment laws  are,  then,  remedial  statutes,  and  are  to  be  construed  so  as  to  advance  the 
remedy  and  to  suppress  the  mischief. 

"  We  disclaim  the  power  of  this  court  to  subject  corporations  to  the  operation  of  this 
act,  upon  the  score  of  policy,  if  they  are  not  within  its  provisions,  fairly,  reasonably, 
and  liberally  construed.  We  think  that  corporations  are  embraced  within  the  provi- 
sions of  the  act,  because  the  terms  used  in  the  act,  which  describe  the  persons  made 
subject  to  its  operation,  are  descriptive  of  corporations.  Those  words  are  'person,' 
'  party,'  '  defendant,'  '  debtor.'  Either  of  these  words  describes  a  corporation.  It  is  a 
person  under  the  law,  —  an  artificial  person,  created  by  the  legislature.    It  has  a  name, 

—  a  local  habitation,  too.  It  is  not  a  citizen  in  every  sense  of  the  word,  but  it  is  an  in- 
habitant, —  it  dwells  where  by  law  it  is  located.     A  corporation  is  a  'judicial  person,' 

—  a  legal  entity.  For  many  purposes,  it  has  a  legal  being.  It  can  contract,  own  prop- 
erty, grant  acquittances,  convey  titles,  become  the  obligee  of  a  bond,  prosecute  suits, 
appear,  answer,  and  defend.  Now  where  the  law-making  power  uses  the  word  person, 
it  is  to  be  presumed  that  the  legal  meaning  is  intended,  and  not  the  social  or  ordinary 
meaning.  The  word  is  descriptive  of  all  who  are,  in  professional  parlance,  persons.  So 
party  and  defendant  are  words  as  applicable  to  corporations  as  to  natural  persons ;  be- 
cause they  may  be,  equally  with  natural  persons,  parties  and  defendants.  The  word, 
however,  used  in  the  act  with  most  significance,  and  used  most  frequently,  is  debtor.  It 
would  seem  that  the  General  Assembly,  by  using  that  term,  intended  to  guard  against 
the  very  construction  now  combated,  to  wit,  that  the  act  applies  only  to  natural  per- 
sons. That  is  a  generic  term,  and  embraces  all  who  owe  debts,  whether  natural 
persons,  partnerships,  or  corporations.  These  are  not  merely  verbal  criticisms.  These 
words  constitute  material  parts  of  the  enacting  clauses  of  the  statute,  and  give  to  them 
significance.  They  define  the  class  of  persons  which  the  act  makes  liable  to  the 
process. 

"  Again,  it  is  clear  that  a  corporation  may  occupy  one  of  the  positions,  to  wit,  the 
position  of  a  non-resident,  in  which  a  debtor  must  be  placed  before  the  attachment  can 
issue.  It  may  reside  out  of  the  State,  and  hence,  we  infer,  that  the  statute  applies  to  it. 
We  have  seen  that  a  corporation  is  an  inhabitant,  or  resident  of  the  State,  where,  by 
law,  it  is  located.  In  that  State,  therefore,  where  it  is  not  located,  it  is  a  non-resident. 
K  it  does  not  reside  in  Georgia,  it  resides  out  of  the  State,  and  falls  into  that  predica- 
ment in  which  the  process  by  the  act  is  authorized  to  be  issued. 

"  There  is  one  rule  of  statutory  construction  recognized  in  England,  and  by  the 
Supreme  Court  of  the  United  States,  which  is  conclusive  of  this  question.  It  is  this. 
Corporations  are  to  be  deemed  and  considered  as  persons,  when  the  circumstances  in  which 
they  are  placed  are  identical  with  those  of  natural  persons  expressly  included  in  a  statute." 

1  Harley  v.  Charleston  Steam-Packet  Co.,  2  Miles,  249  ;  South  Carolina  Railroad 
Co.  V.  McDonald,  5  Georgia,  531  ;  Day  v.  Newark  I.  R.  Man.  Co.,  1  Blatchford,  628 ; 
Mineral  Point  R.  R.  Co.  v.  Keep,  22  Illinois,  9.  • 

2  Sprague  v.  Hartford  P.  &  F.  R.  R.  Co.,  5  Rhode  Island,  2.^3. 

[55J 


§  82  CORPORATIONS   AND   REPRESENTATIVE  PERSONS.      [CHAP.  IV. 

heirs,  executors,  trustees,  or  others  claiming  merely  by  right  of 
representation.^  Subsequently  this  doctrine  was  recognized  and 
affirmed,  under  another  statute,  which  the  court  said  was  much 
more  explicit  than  that  which  was  the  subject  of  the  former  con- 
struction. Under  this  second  statute  an  attachment  might  be 
obtained  by  a  creditor  "  having  a  demand  against  the  debtor  joer- 
Bonally .'''' "^  The  same  views  have  been  expressed  by  the  courts  of 
Connecticut,  New  Jersey,  Pennsylvania,  South  Carolina,  Alabama, 
and  Louisiana,  and  by  the  United  States  Circuit  Court  for  the 
District  of  Columbia.^  In  Virginia,  however,  in  the  proceeding 
by  foreign  attachment  in  chancery^  it  is  held,  that  the  heirs  of  a 
deceased  debtor  may  be  proceeded  against,  for  the  purpose  of  sub- 
jecting the  property  of  their  ancestor  to  the  payment  of  his  debt,* 
and  that  a  creditor  of  an  absent  debtor,  who  is  one  of  the  heirs 
and  distributees  of  a  deceased  intestate  in  Virginia,  may  go  into 
a  court  of  equity,  for  the  purpose  of  having  a  division  and  distri- 
bution of  the  estate  of  the  decedent,  and  of  procuring  payment 
of  his  debt  out  of  the  share  of  the  absent  debtor  in  the  estate.^ 

§  82.  But  if  an  executor  or  admmistrator,  in  the  course  of  the 
discharge  of  his  duties  as  such,  place  himself  in  a  position  where 
he  becomes,  by  the  principles  of  law,  personally  liable  ;  as,  for  in- 
stance, if  he  enter  upon  leasehold  property  held  by  his  testator  or 
intestate  in  his  lifetime,  or  receive  the  rents  and  profits  thereof, 
he  thereby  becomes  chargeable  in  the  debet  and  detiiiet,  or  directly 
on  the  covenant,  as  an  assignee,  and  may  be  proceeded  against 
personally,  and  need  not  be  named  as  executor  or  administrator. 
Thus,  a  lessee  covenanted  that  he,  his  executors,  administrators, 
or  assigns  would,  at  his  and  their  own  proper  costs  and  charges, 
pay  and  discharge  all  taxes,  duties,  and  assessments  which  should, 
during  the  term,  be  imposed  upon  the  demised  premises  ;  and  the 
lessee  died  intestate,  and  letters  of  administration  were  granted  to 

1  Jackson  v.  Walswortli,  1  Johns.  Cases,  372 ;  Metcalf  v.  Clark,  41  Barbour,  45. 

2  Matter  of  Hurd,  9  Wendell,  465. 

2  Stanton  v.  Holmes,  4  Day,  87;  Peacock  v.  Wildes,  3  Halsted,  179;  Haight  v. 
Bergh,  3  Green,  183  ;  McCoombe  v.  Dunch,  2  Dallas,  73  ;  Pringle  v.  Black,  Ibid.  97  ; 
Weyman  v.  Murdock,  Harper,  125  ;  Taliaferro  v.  Lane,  23  Alabama,  369  Bro^vn  v. 
Richardson,  1  Martin,  n.  s.  202  ;  Debuys  v.  Yerbey,  Ibid.  380 ;  Cheatham  v.  Carring- 
ton,  14  Louisiana  Annual,  696;  Patterson  v.  McLaughlin,  1  Cranch,  C.  C.  352 ;  Hen- 
derson i\  Henderson,  Ibid.  469. 

*  Carrington  v.  Didier,  8  Grattan,  260. 

6  Moores  v.  White,  3  Grattan,  139. 
[56] 


CHAP.  IV.]   CORPORATIONS  AND  REPRESENTATIVE  PERSONS.      §  82 

a  non-resident,  who  received  the  rents,  issues,  and  profits  of  the 
demised  premises.  An  assessment  was  imposed  upon  the  demised 
premises  in  the  laying  out,  opening,  and  continuing  of  a  street,  a 
portion  of  which  the  lessor  was  obliged  to  pay ;  who  thereupon 
instituted  proceedings  by  attachment  against  the  administrator, 
alleging  that  he  was  indebted  to  him  personally,  and  the  court 
sustained  the  attachment.^ 

1  Matter  of  Gallowaj-,  21  "Wendell,  32. 

[57] 


§  84  AFFIDAVIT  FOR   ATTACHMENT.  [CHAP.  V. 

CHAPTER  Y. 

AFFIDAVIT   FOR  OBTAINING   AN   ATTACHMENT. 

§  83.  In  nearly  all  the  States,  an  attachment  can  be  obtained 
only  on  the  exhibition  to  the  officer  authorized  to  issue  it,  of  evi- 
dence of  the  existence  of  some  fact  declared  by  law  to  be  a  ground 
for  issuing  the  writ.  This  evidence  is  always  in  the  shape  of  an 
affidavit  by  the  plaintiff,  or  some  one  on  his  behalf.  As  it  is  the 
starting-point  of  the  whole  proceeding,  —  the  lever,  as  it  were,  by 
which  the  jurisdiction  of  the  court  is  brought  into  action,  —  and 
as  the  validity  of  the  subsequent  proceedings  may,  so  far  as  the 
question  of  jurisdiction  is  involved,  depend  on  its  conformity  to 
statutory  requirements  ;  we  cannot  examine  too  closely,  nor  set 
forth  too  carefully,  the  various  points  which  have  arisen  in  connec- 
tion with  it. 

§  84.  When  a  court  exercises  an  extraordinary  power,  under  a 
special  statute  prescribing  its  course,  that  course  ought  to  be  ex- 
actly observed,  and  those  facts  especially,  wliich  give  jurisdiction, 
ought  to  appear,  in  order  to  show  that  its  proceedings  are  coram 
judice}  The  power  to  hear  and  determine  a  cause  is  jurisdiction  ; 
it  is  coram  judice  whenever  a  case  is  presented  which  brings  this 
power  into  action  .^  Any  movement  by  a  court  is  necessarily  the 
exercise  of  jurisdiction  ;  and  the  question  in  any  case  before  a 
court  is,  whether  its  action  is  judicial  or  extrajudicial ;  with  or 
without  the  authority  of  law.  If  the  law  confers  the  power  to  ren- 
der a  judgment  or  decree,  then  the  court  has  jurisdiction  :  what 
shall  be  adjudged  or  decreed  between  the  parties,  is  judicial  ac- 
tion.^ These  principles  apply  with  force  to  proceedings  by  attach- 
ment, wherever  they  rest  upon  affidavit  of  the  existence  of  certain 
facts,  without  the  existence  and  proof  of  which  the  court  would 
have  no  jurisdiction.  When,  therefore,  no  affidavit  is  made,  or 
that  made  does  not  present  a  legal  foundation  for  the  issue  of  the 

1  Thatcher  v.  Powell,  6  Wheaton,  119. 

2  United  States  v.  Arredondo,  6  Peters,  691,  709. 

8  Rhode  Island  v.  Massachusetts,  12  Peters,  657,  718  ;  Grignon  v.  Astor,  2  Howard, 
Sup.  Ct.  319,  338. 

[58] 


CHAP,  v.]  AFFIDAVIT    FOR   ATTACHMENT.  §  86 

writ,  the  writ  and  all  proceedings  under  it  are  coram  non  judice 
and  void,  unless  the  defect  be  waived  by  the  act  of  the  defendant, 
or  is,  by  statute,  amendable,  and  be  amended.^  If  there  be  no 
affidavit,  the  omission  cannot  be  supplied,  even  though  there  be  a 
statute  authorizing  defects  in  affidavits  to  be  amended  ;  for  an 
amendment  presupposes  the  existence  of  an  affidavit  in  a  defective 
form.-  If  there  be  no  statutory  authority  for  amending  an  affida- 
vit, the  court  has  no  power  to  allow  such  an  amendment.^ 

§  85.  Whenever  a  defendant,  either  by  motion  or  plea  in  abate- 
ment, assails  an  attachment  on  account  of  absence  of,  or  insuffi- 
ciency in,  the  affidavit,  his  motion  or  plea  is  based,  not  upon  mere 
irregularity  in  the  proceedings,  but  upon  the  ground  that  the 
proper  foundation  has  not  been  laid  for  the  exercise  of  jurisdiction 
over  him  in  that  particular  mode.  If  his  motion  or  plea  be  sus- 
tained, the  attachment  proceeding  falls  to  the  ground,  and  cannot, 
without  special  statutory  aid,  be  reinstated  or  continued  in  exist- 
ence ;  for  without  such  aid  no  amendment  can  be  made.  This, 
however,  is  not  the  matter  now  to  be  discussed  ;  as  it  is  of  minor 
importance  compared  with  the  question  whether,  and  to  what 
extent,  attachment  proceedings  may  be  assailed  collaterally,  on 
account  of  infii-mity  in  the  affidavit.  If  vulnerable  at  all  in  this 
respect,  when  drawn  in  question  collaterally,  it  must  be  for  want 
of  jurisdiction  ;  for  no  principle  is  better  established  than  that 
mere  errors  and  irregularities  in  judicial  proceedings  cannot  be 
taken  advantage  of  collaterally  ;  unless  it  be  the  principle,  that 
want  of  jurisdiction  may  be  shown  by  any  one  against  whom  rights 
are  claimed  through  the  proceedings.  This  subject,  therefore,  lies 
at  the  very  foundation  of  the  whole  proceeding  by  attachment,  and 
is  worthy  of  very  careful  consideration. 

§  86.   As  will  be  more  fully  shown  in  a  succeeding  portion  of 

1  Smith  V.  Luce,  14  "Wendell,  237  ;  Ex  parte  Haynes,  18  Ibid.  611  ;  Ex  parte  Eobin- 
Bon,  21  Ibid.  672  ;  In  re  Faulkner,  4  Hill  (N.  Y.),  598 ;  In  re  Bliss,  7  Ibid.  187 ;  Mantz 
V.  Hendly,  2  Hening  &  Munford,  308  ;  McReyuolds  v.  Neal,  8  Humphreys,  12;  Maples 
V.  Tunis,  11  Ibid.  108  ;  Wight  v.  Warner,  1  Douglass,  384 ;  Buckley  v.  Lovvry,  2  Mich- 
igan, 418;  Clark  v.  Roberts,  1  Illinois  (Breese),  222;  Cadwell  v.  Colgate,  7  Barbour, 
253 ;  Bruce  v.  Cook,  6  Gill  &  Johnson,  345 ;  Kennedy  v.  Dillon,  1  A.  K.  Marshall, 
354  ;  McCulloch  v.  Foster,  4  Yerger,  162  ;  Conrad  v.  McGee,  9  Ibid.  428;  Whitney  v. 
Brunette,  15  Wisconsin,  61. 

2  Grcenvault  v.  F.  &  M.  Bank,  2  Douglass,  498. 

8  Bro-vn  v  McCluskey,  26  Georgia,  577  ;  Cohen  v.  Manco,  28  Ibid.  27. 

[591 


§  87  AFFIDAVIT  FOR   ATTACmiENT.  [CIIAP.  V 

this  chapter,^  an  attachment  issues,  in  some  States,  as  a  matter  of 
right,  upon  affidavit  being  made  that  some  certain  fact  exists  ; 
while  in  others  it  is  required  that  the  officer  shall  be  satisfied,  by 
affidavit  presented  to  him,  of  the  existence  of  the  fact.  In  the  for- 
mer case  the  officer's  duty  is  merely  ministerial,  involving  no 
inquiry  on  his  part,  except  as  to  whether  the  particular  fact  is 
sworn  to  ;  in  the  latter,  his  functions  are  judicial,  as  well  as  minis- 
terial :  he  must  be  satisfied  judicially,  by  the  affidavit  presented  to 
him,  not  merely  that  the  fact  is  sworn  to,  but  that  the  evidence  is 
sufficient  to  prove  that  it  really  exists.  It  will  be  noticed  that  the 
cases  about  to  be  cited,  in  which  attachments  have  been  success- 
fully assailed  collaterally,  on  account  of  insufficient  affidavit,  have 
arisen  under  both  of  these  systems. 

§  87.  One  aspect  of  this  subject  is  that  in  which  the  attachment 
bears  upon  the  garnishee.  He  stands  in  a  collateral  position,  — 
that  of  a  mere  stake-holder  between  other  contending  parties  ; 
and  if  he  is  to  be  affected  by  the  extraordinary  power  exercised 
over  him,  he  is  entitled  to  see  that  the  action  of  the  court  will  pro- 
tect him,  in  the  future,  against  all  persons.  This  it  will  not  do,  if 
the  court  act  without  jurisdiction.  It  has,  therefore,  been  held  in 
Maryland,  that  if  the  affidavit  do  not  show  the  facts  necessary  to 
establish  the  jurisdiction  of  the  court  over  the  defendant  by  attach- 
ment, the  garnishee  may  take  advantage  of  it,  at  any  stage  of  the 
proceeding.^    In  the  cases  in  which  this  rule  was  established,  the 

1  Post,  §§  97-100. 

2  Shivers  v.  Wilson,  5  Harris  &  Johnson,  130 ;  Yerby  v.  Lackland,  6  Ibid.  446 ; 
Bruce  v.  Cook,  6  Gill  &  Johnson,  345.  In  the  first  of  these  cases  the  court  say  :  "  No  po- 
sition in  law  is  more  clearly  estabhshcd,  than  that  a  defendant  in  a  cause,  before  a  court 
oi  general  jurisdiction,  must,  if  he  wishes  to  avail  himself  of  the  disability  of  the  plaintiff 
to  sue,  do  so  by  a  plea  in  abatement ;  and  no  principle  of  law  is  more  evident,  than  that 
•where  the  tribunal  is  of  a  limited  jurisdiction,  or  the  proceedings  are  particularly  de- 
scribed by  a  statute  made  on  the  subject,  that  course  of  procedure,  so  described,  must, 
on  the  face  of  the  record,  appear  to  have  been,  if  not  literally,  at  least  substantially, 
complied  with ;  or  the  case  must  by  the  proceedings  disclose  itself  to  be  within  the 
limited  jurisdiction.  It  follows,  from  the  preceding  principles,  that  the  decision  of  the 
court  below  [which  in  effect  quashed  the  attachment  and  discharged  the  garnishee], 
must  be  sustained,  if  it  had  but  a  limited  jurisdiction,  or  if  its  course  of  proceeding  was 
of  a  circumscribed  description,  unless,  on  the  face  of  the  record,  the  case  shall  appear 
to  have  been  vnthin  the  jurisdiction,  or  the  course  of  proceeding  directed  by  law  to  have 

been  substantially  complied  with The  record  before  the  court  in  this  case,  in  no 

part  of  it  brings  the  plaintiff  within  that  description  of  persons  who  had  a  right  to  issue, 
or  cause  the  attachment  to  have  issued.  The  right  to  condemn  the  property  in  favor 
of  such  a  plaintiff,  is  by  no  law  vested  in  the  court  before  whom  the  cause  was  tried,  or 
in  any  other  court." 

[60] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  88 

aflfidavits  were  defective,  in  not  showing  the  plaintiff  to  have  been 
a  citizen  of  Maryland,  or  of  any  other  of  the  United  States.  In 
Mississippi,  a  judgment  against  a  garnishee  was  reversed  and  the 
attachment  dismissed,  because  the  record  showed  no  affidavit  for 
the  attachment.!  In  both  Maryland  and  Mississippi,  an  attach 
ment  issues  upon  an  affidavit  showing  particular  facts  merely, 
without  the  officer  being  req^iired  to  be  satisfied  judicially  that  the 
facts  really  exist. 

§  88.  But  a  much  more  important  class  of  cases  in  this  connec- 
tion, are  those  in  which  title  to  property  is  claimed  through  an 
attachment,  where  the  defects  in  the  proceedings  have  not  been 
cured  by  the  appearance  of  the  defendant.  Such  have  arisen  in 
New  York,  where  the  officer  issuing  the  attachment  acts  judicially, 
in  determining  whether  the  facts  stated  in  the  affidavit  establish 
the  ground  of  attachment ;  and  in  Tennessee,  where  the  writ  is- 
sues upon  affidavit  simply  of  the  existence  of  certain  facts.  In 
both  States  the  cases  in  which  the  question  arose  were  actions  of 
ejectment.  In  New  York,  the  plaintiff  claimed  title  as  a  purchaser 
at  a  sale  made  by  trustees,  appointed  under  the  law  of  that  State, 
in  a  proceeding  by  attachment ;  the  trustees  being  there  empow- 
ered to  sell  the  property  attached.  The  title  thus  set  up  was 
assailed  for  want  of  jurisdiction  hi  the  officer' who  issued  the  at- 
tachment, because  of  the  defective  character  of  the  affidavits,  in 
not  laying  a  sufficient  ground  for  its  issue.  The  court  went  into 
an  examination  of  the  affidavits,  and  declared  them  insufficient, 
and  held  that  the  attachment  was  void  ;  that  the  subsequent  pro- 
ceedings fell  with  it ;  and  tliat  the  sale  by  the  trustees  conferred 
no  title  on  the  purchaser.  "  There  was,"  said  the  court,  "  confer- 
red upon  the  judge  who  issued  the  attachment  a  special  and  limit 
ed  jurisdiction.  It  is  well  settled,  that  when  certain  facts  are  to 
be  proved  to  a  court  having  only  such  a  jurisdiction,  as  a  ground 
for  issuing  process,  if  there  be  a  total  defect  of  evidence  as  to  any 
essential  fact,  the  process  will  be  declared  void,  in  whatever  form 
the  question  may  arise.  But  when  the  proof  has  a  legal  tendency 
to  make  out  a  proper  case,  in  all  its  parts,  for  issuing  the  process, 
then,  although  the  proof  may  be  slight  and  inconclusive,  the  pro- 
cess will  be  valid  until  it  is  set  aside  by  a  direct  proceeding  foi 
that  purpose.     In  one  case,  the  court  acts  without  authority ;  in 

1  Ford  V.  Woodward,  2  Smedes  &  Marshall,  260. 

L61] 


§  89  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

the  other,  it  only  errs  in  judgment  upon  a  question  properly  before 
it  for  adjudication.  In  one  case,  there  is  a  defect  of  jurisdiction  ; 
in  the  other,  there  is  only  an  error  of  judgment.  Want  of  juris- 
diction makes  the  act  void  ;  but  a  mistake  concerning  the  just 
weight  of  evidence  only  makes  the  act  erroneous,  and  it  will  stand 
good  until  reversed."  ^ 

The  cases  in  Tennessee  are  precisely  of  the  same  character. 
In  one  of  them  the  court  used  the  following  language :  "  It  ap- 
pears from  the  record  of  these  proceedings,  that  the  affidavit  was 
defective,  in  not  stating  the  cause  for  which  the  attachment  issued, 
whilst  the  attachment  is  good  in  point  of  form,  and  assumes,  in 
effect,  that  a  perfect  affidavit  was  made.  It  is  now  insisted,  that 
the  writ  of  attachment  shall  be  conclusive  as  to  all  the  material 
facts  it  assumes,  and  that  it  can  neither  be  aided  or  impaired 
by  reference  to  the  affidavit  required  in  such  cases ;  that  the  affi- 
davit is  not  required  to  be  recorded  with  the  other  proceedings  in 
the  Circuit  Court,  and  that  therefore  we  can  take  no  judicial  no- 
tice of  it.  It  will  be  observed,  however,  by  reference  to  the  act 
just  referred  to,  that  it  is  required  that  the  affidavit  be  made  part 
of  such  record.  We  think  it  a  reasonable  and  proper  rule,  that 
the  validity  of  this  description  of  judicial  sales  shall  be  tested  by 
the  record  of  the  Circuit  Court,  made  in  pursuance  of  the  statute. 
It  was  intended  by  the  statute,  that  such  record  should  be  the 
proper  and  permanent  memorial  of  the  validity  of  the  sale.  The 
affidavit  forms  a  material  part  of  the  record,  and  we  think  we  are 
not  precluded  by  the  writ  of  attachment  from  taking  judicial  no- 
tice of  it The  affidavit  was  materially  defective,  and  was 

not  amended.  The  consequence  is,  that  the  judgment  and  execu- 
tion on  the  attachment  were  void,  and  the  sale  communicated  no 
title  to  the  purchaser."  ^ 

§  89.  The  views  thus  expressed  are  undoubtedly  based  on 
sound  legal  principles,  and  indicate  the  necessity  for  great  cir- 
cumspection in  laying  an  unquestionable  foundation  in  ex  parte 
proceedings,  for  the  exercise  of  the  jurisdiction  of  tlie  court. 
Where,  however,  the  defendant  is  served  with  process,  the  case  is 
different.     There,  he  may  come  in  and  move  to  set  aside,  quash, 

1  Staples  V.  Fairchild,  3  Comstock,  41. 

2  Maples  V.  Tanis,  11  Humphreys,  108  ;  Conrad  v.  McGee,  9  Yerger,  428.  See  Wil- 
son V.  Arnold,  5  Michigan,  98. 

[62] 


CHAP,  v.]  AFFIDA\1T   FOR   ATTACHMENT.  §  91 

or  dissolve  the  attachment  because  of  defect  m  the  affidavit ;  and 
if  his  motion  be  sustained,  the  property  will  be  discharged  from 
the  attachment,  leaving  the  action  to  proceed  against  him  in  the 
ordinary  way,  or  to  be  dismissed,  according  to  the  particular  sys- 
tem of  practice  under  which  it  is  brought.  But  if  he  waive  this 
right,  and  suffer  judgment  to  be  rendered  against  him,  the  rights 
acquired  under  the  judgment  no  longer  depend  on  the  attachment 
for  their  validity,  and  cannot  be  affected  by  defects  in  the  jurisdic- 
tional basis  of  the  attachment.  They  rest  upon  the  judgment, 
which  is  valid,  and  cannot  be  collaterally  impeached.^ 

§  90.  The  affidavit  is  unquestionably  a  part  of,  and  must  ap- 
pear in,  the  record  of  the  attachment  suit.^  If  it  be  there,  but 
not  filed,  the  fact  that  it  was  delivered  to  the  officer  before  the 
writ  issued,  and  was  the  ground  for  its  issue,  but  that  he  failed  at 
the  time  to  file  it,  may  be  proved  by  him  orally,  so  as  to  sustain 
the  proceeding,  and  authorize  the  affidavit  to  be  filed  nune  pro 
tunc;^  but  where  no  affidavit  appears,  no  evidence  —  save,  per- 
haps, in  the  case  of  loss  or  destruction  —  is  admissible  to  prove 
that  one  was  made.  Even  a  recital  in  the  writ  to  that  effect  will 
not  prove  the  fact,  or  sustain  the  proceeding.* 

§  91.  In  practice,  the  first  point  to  be  ascertained  is,  whether, 
in  fact,  an  affidavit  was  made.  There  may  be  in  the  record  what 
was  designed  for,  and  yet  may  not  be,  an  affidavit,  because  not 
properly  authenticated.  The  absence  of  the  party's  signature 
does  not  prove  that  he  was  not  sworn,  for  it  is  not  necessary  to 
constitute  an  affidavit,  unless  required  by  statute,  that  the  party 
making  should  sign  it.^  It  is  otherwise,  however,  where  there  is 
no  official   authentication ;   though,  under  some   circumstances, 

1  Toland  v.  Sprague,  12  Peters,  300. 

2  Shivers  v.  Wilson,  5  Harris  «Sb  Johnson,  1 30 ;  Ford  v.  "Woodward,  2  Smedes  &  Mar- 
shall, 260;  Maples  i;.  Tunis,  11  Humphreys,  108;  Conrad  v.  McGee,  9  Yerger,  428; 
Staples  V.  Fairchild,  3  Comstock,  41. 

8  Simpson  v.  Minor,  1  Blackford,  229. 

*  Bond  V.  Patterson,  1  Blackford,  34.  In  Biggs  v.  Blue,  5  McLean,  148,  the  Circtut 
Court  of  the  United  States  for  Ohio,  in  a  case  in  which  an  attachment  proceeding  was 
assailed  collaterally,  because  the  record  showed  no  alEdavit,  held  that  the  court  could 
not  presume  there  was  no  affidavit,  from  its  not  being  copied  into  the  record.  This  was 
simply  the  point  decided.  The  case,  it  seems,  did  not  require  the  court  to  go  further, 
and  say  how  the  want  of  an  affidavit  in  such  case  could  be  proved,  unless  by  its  not 
appearing  in  what  purported  to  be  a  complete  record  of  the  atlachment  cause. 

6  Redus  V.  Wofford,  4  Smedes  &  Marshall,  579 ;  Bates  v  Kobinson,  8  Iowa,  310. 
Sed  contra,  Cohen  v.  Manco,  28  Georgia,  27. 

[63] 


§  91  AFFIDAVIT  FOR  ATTACHMENT.  [CHAP.  V. 

that  has  been  supplied  by  implication  from  the  contents  of  the 
record,  and  even  by  parol   proof.     Thus,  where   that   appeared 
among  the  papers,  which  wanted  only  the  signature  of  the  judge 
to  \hQ  jurat,  to  make  it  a  complete  affidavit,  and  across  the  face 
of  the  document  were  written  the  words,  "  sworn  and  subscribed 
before  me,"  in  the  handwriting  of  the  judge,  but  not  signed  by 
him ;  and  immediately  below,  and  on  the  same  paper,  was  written 
the  order  for  the  attachment  to  issue,  which  was  signed  by  him ; 
and  both  the  unfinished  jurat  and  the  order  bore  the  same  date ; 
and  the  order  recited  that  the  judge  had  read  the  petition,  affida- 
vit, and  the  documents  annexed  ;  it  was  held,  that  he  acted  on 
the  paper  as  an  affidavit  sworn  to  before  himself;  and  in  signing 
•the  order  containing  that  expression,  he,  by  the  strongest  implica- 
tion, certified  that  it  had  been  sworn  to  before  himself ;  and  that 
the  want  of  his  signature  to  the  jurat  was  no  sufficient  ground  for 
dissolving  the  attachment.^     So,  where  the  affidavit  was  stated  in 
ihQ  jurat  to  have  been  sworn  to 'before  one  who  sigiied  his  name, 
without  adding  thereto  any  official  designation,  but  the  writ  was 
signed  by  a  person  in  the  same  name,  as  clerk  of  the  court  in 
which  the  suit  was  brought ;  the  court  presumed  that  the  affidavit 
was  sworn  to  before  the  same  officer .^     But  where  the  papers  do 
not  justify  such  an  implication,  the  absence  of  an  official  attesta- 
tion to  the  affidavit  has  been  held  to  be  fatal  to  it.^     In  Alabama, 
■  however,  in  a  case  of  this  description,  it  was  considered,  that  upon 
a  motion  to  quash  the  attacliment,  everything  disclosed  by  the 
proceedings  should  be  taken  to  be  true  ;   that  the  court  would 
suppose  the  affidavit  to  have  been  regularly  taken ;  and  that  if 
such  wa^  not  the  fact,  it  was  to  be  taken  advantage  of  by  plea  in 
abatement,  and  not  by  motion  to  quash.*    Afterwards,  in  another 
case,  of  identical  character,  the  defendant  pleaded  in  abatement 
the  want  of  the  signature  of  the  officer  ;  to  which  the  plaintiff 
replied  that  the  affidavit  was  in  point  of  fact  made ;  to  which  rep- 
lication the  defendant  demurred  ;  and  it  was  held,  that  the  plea 
,was  fully  answered  by  the  replication,  and  that,  though  it  would 
have  been  more  regular  for  the  officer  to  have  certified  the  affi- 
davit, the  court  were  not  prepared  to  say  that  his  omission  to  do 
so  necessarily  vitiated  the  proceedings.^ 

1  English  V.  Wall,  12  Eobinson  (La.),  132. 

2  Singleton  v.  Wofford,  4  Illinois  (3  Scammon),  576. 
8  Birdsong  v.  McLaren,  8  Georgia,  521. 

*  Lowry  V.  Stowe,  7  Porter,  483.         ^  McCartney  v.  Brancli  Bank,  3  Alabama,  709 
[64] 


CHAP,  v.]  AFFIDAVIT   FOR  ATTACHMENT.  §  93 

§  92.  The  next  matter  to  be  determined  is,  whether  a  particular 
affidavit,  relied  on  to  sustain  the  attachment,  was,  in  fact,  made  in 
the  attachment  suit.  This  would  seem  to  be  easily  ascertainable, 
by  the  title  of  the  affidavit,  or  by  its  connection  with  the  papers 
in  the  cause ;  but  still,  there  are  reported  cases  on  this  point.  An 
affidavit  ha\dng  no  title,  not  referring  to  the  summons  or  any  other 
paper  having  the  title,  not  stating  who  the  deponent  is,  or  what  he 
has  to  do  with  the  suit,  or  who  is  plaintiff  or  defendant,  was  held 
to  be  too  indefinite  to  be  the  basis  of  an  attachment.^  But  in  Ar- 
kansas, where  the  affidavit  was  not  entitled  in  the  suit,  and  did  not 
describe  the  person  who  made  it,  as  plaintiff,  or  the  debtor  named 
in  it  as  defendant,  and  was  not  attached  to  any  of  the  original 
papers  in  the  cause,  it  was  considered  sufficient.^ 

§  93.  There  is  ordinarily  no  difficulty  in  ascertaining  whether 
the  affidavit  was  made  by  one  authorized  by  statute  to  make  it ; 
for  the  statutory  terms  are  usually  sufficiently  clear.  Where  the 
law  explicitly  requires  it  to  be  made  by  the  plaintiff,  and  mentions 
no  other  person  by  whom  it  may  be  made,  the  rule  applied  to  at- 
tachment bonds  under  like  circumstances,  that  the  act  can  be  done 
by  no  other  than  the  plaintiff,^  would  perhaps  be  established  ; 
though  the  Supreme  Court  of  Alabama  refused  to  do  so.*  In  the 
nature  of  things,  however,  such  a  rule  would  be  subject  to  excep- 
tions. Thus,  it  has  been  held,  under  such  a  statute,  that  an  affi- 
davit in  an  action  by  a  corporation  may  be  made  by  its  agent.^ 
So,  where  a  suit  was  brought  by  A.  to  the  use  of  B.,  and  B.'s  agent, 
describing  himself  as  such,  made  the  affidavit,  it  was  considered 
that  this  met  the  terms  of  a  statute  requiring  "  the  party  applying 
for  the  attachment,  his  agent,  attorney,  or  factor"  to  make  the 
affidavit.^  In  Louisiana,  however,  it  was  held,  that  an  affidavit 
made  by  a  third  person,  not  appearing  to  have  any  knowledge  of 
the  matter,  was  bad.^  If  it  appear,  however,  by  the  record,  tliat 
the  affiant  is  a  party  to  the  suit,  it  is  not  necessary  for  him  to  make 
in  the  affidavit  any  allegation  of  his  interest  therein.^ 

1  Burgess  v.  Stitt,  12  Howard  Pract.  R.  401. 

^  Cheadle  v.  Riddle,  6  Arkansas  (1  English),  480;  Kinney  v.  Heald,  17Ibid.  397. 
3  Myers  (•.  Lewis,  1  McMuIlan,  54 ;   Mantz  v.  Hendley,  2  Hening  &  Munford,  308 ; 
Pool  V.  Webster,  3  Metcalfe  (Ky.),  278. 
*  Flake  v.  Day,  22  Alabama,  132. 
6  Trenton  Banking  Co.  v.  Haverstick,  6  Halsted,  171. 
s  Murray  v.  Cone,  8  Porter,  250. 
'  Baker  v.  Hunt,  1  Martin,  194. 
8  Bosbyshell  v.  Emanuel,  12  Smedes  &  Marshall  63.  rgg-i 


§  94  ATFroAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

§  94.  If  a  statute  authorize  an  affidavit  to  be  made  by  the 
plaintiff's  agent  or  attorney,  and  it  be  made  by  a  person  other 
than  the  plaintiff,  the  affiant  must  be  described  in  tlie  affidavit  as 
such  agent  or  attorney,  or  the  affidavit  will  be  insufficient.  Thus, 
where  the  petition  was  signed  by  "  F.  &  F.,  attorneys  for  plaintiffs," 
and  the  affidavit  was  made  by  "B.  F.  F.,"  without  describing  him- 
self as  agent  or  attorney,  the  court  said  it  could  not  l^now  that  the 
affiant  was  one  of  the  persons  who  signed  the  petition  as  attorneys 
for  the  plaintiffs,  nor  would  it  look  to  other  parts  of  tlie  record  to 
find  information  which  ought  to  be  contained  in  the  affidavit  itself.^ 
Where  an  affidavit  may  be  made  by  an  attorney,  that  term  is  not 
confined  to  an  attorney  in  fact,  but  includes  an  attorney  at  law.'-* 
But  in  Louisiana,  it  was  held  not  to  authorize  an  attorney  at  law, 
residing  in  another  State,  and  employed  to  attend  in  the  State  of 
his  residence  to  the  collection  of  a  debt,  to  come  into  Louisiana, 
without  special  authority  from  his  client,  and  take  out  an  attach- 
ment, making  the  affidavit  himself.^  When  a  statute  permits  an 
affidavit  to  be  made  by  an  agent,  it  is  said  that  if  he  swear  "  to 
the  best  of  his  knowledge,"  it  will  be  sufficient.*  So,  where  an 
attorney  made  affidavit  of  the  nature  and  amount  of  the  defend- 
ant's indebtedness,  "  upon  information  and  belief  derived  from 
and  founded  upon  the  written  admissions  of  the  defendant,  then 
m  the  attorney's  possession,"  it  was  held  sufficient.^  But  where 
he  is  required  by  the  statute  to  swear  "  to  the  best  of  his  knowl- 
edge and  belief,"  it  is  not  sufficient  that  he  swear  "  to  the  best  of 
his  belief."  ^  And  in  such  case  it  need  not  be  stated  in  the  affida- 
vit that  the  affiant  made  it  for  the  plaintiff;  it  will  be  presumed 
that  he  did  so.'^  Nor  need  he  swear  that  he  is  an  agent  or  attor- 
ney of  the  plaintiff,  if  he  so  describe  himself  in  the  affidavit.^ 
Where  the  statute  authorized  an  affidavit  to  be  made  by  an 
agent  or  attorney,  if  the  plaintiff  be  absent  from  the  county,  "  in 
which  case  the  affidavit  shall  state  his  absence,^^  the  omission  of  this 
statement  from  an  affidavit  made  by  an  attorney  was  held  to 
vitiate  it.^ 

1  Willis  V.  Lyman,  22  Texas,  268. 

2  Clark  V.  Morse,  16  Louisiana,  575 ;  Austin  v.  Latham,  19  Ibid.  88. 

3  Wetmore  v.  Daffin,  5  Louisiana  Annual,  496. 
*  Bridges  v.  Williams,  1  Martin,  n.  s.  98. 

^  Howell  V.  Kingsbury,  15  Wisconsin,  193. 
6  Bergh  v.  Jayne,  7  Martin,  n.  s.  609. 
">  Mandel  v.  Peet,  18  Arkansas,  236. 

8  Wetherwax  v.  Paine,  2  Michigan,  555.      ^  Pool  v.  Webster,  3  Metcalfe  (Ky.),  278 
[66] 


CHAP,  v.]  AFFroA\nT   FOR    ATTACmiENT.  §  95 

§  95.  In  every  affidavit  for  an  attachment,  there  are  two  distinct 
parts,  one  relating  to  the  amount  due  from  the  defendant  to  the 
plaintiff,  the  other  to  the  facts  relied  on  as  a  ground  for  obtaining 
the  writ. 

In  regard  to  the  first,  it  is  as  necessary  to  comply  with  all  the 
requirements  of  the  law,  as  it  is  in  reference  to  the  second.  If 
the  law  prescribe  the  terms  in  which  the  plaintiff  shall  substan- 
tiate his  claim,  those  terms  must  be  fulfilled,  or  the  attachment 
will  fail.  Thus,  where  the  law  required  the  affidavit  to  declare 
that  the  plaintiff's  claim  is  just,  the  omission  of  that  declaration 
is  fatal,  though  in  every  other  respect  the  affidavit  be  unexception- 
able.^ And  so,  under  the  same  law,  if  the  affiant  states  that  he 
believes  the  plaintiff  ought  to  recover  the  amount  of  the  demand 
sued  on. 2 

It  is  no  objection  to  an  affidavit  that  the  facts  set  forth  in  it 
would  seem  to  show  that  the  plaintiff  might  have  claimed  a  larger 
sum  in  the  suit  than  he  did.^  And  it  is  not  essential  that  the 
amount  should  be  set  forth  in  terms  in  the  affidavit,  if  the  form 
of  pleading  be  such  as  to  require  it  to  be  stated  in  the  petition, 
and  it  be  there  stated,  and*  be  referred  to  in  the  affidavit  as  the 
sum  for  which  the  attachment  is  obtained.*  Such,  however,  would 
not  be  the  case  where  the  common  law  forms  of  pleading  are  pre- 
served. But  where  the  cause  of  action  and  the  ground  of  attach- 
ment are  required  to  be  both  set  forth  in  the  petition,  and  the 
affidavit  subjoined  refers  only  to  the  latter,  the  attachment  cannot 
be  sustained,  for  there  is  nothing  showing,  under  oath,  what 
amount  was  due.^ 

The  following  case  came  up  in  Louisiana,  where  it  is  required 
by  the  Code  of  Practice  that  the  plaintiff  shall  make  a  declaration 
under  oath,  at  the  foot  of  the  petition,  "  stating  the  amount  of  the 
sum  due  him.''  The  affidavit  stated  that  the  defendants  were  in- 
debted to  the  plaintiff  "  in  a  sum  exceeding  two  thousand  dol- 
lars " ;  and  it  was  decided  that  it  was  specified  with  sufficient 
certainty  that  at  least  that  sum  was  due,  and  that  the  attachment 
might  well  lie  for  that  sum,  and  as  it  did  not  issue  for  a  greater. 

1  "Worthington  v.  Gary,  1  Metcalfe  (Ky.),  470 

2  Taylor  v.  Smith,  17  B.  Monroe,  536. 

3  Henrie  v.  Sweasey,  5  Blackford,  273. 

*  Boone  v.  Savage,  14  Louisiana,  169;  Souberain  v.  Renaux,  6  Louisiana  Annual, 
201  ;  Morgan  v.  Johnson,  15  Texas,  568. 

°  Blakely  v.  Bird,  12  Iowa,  601 ;  Price  v.  Meititt,  13  Louisiana  Annual,  526. 

[67] 


§  95  AFFIDAVIT  FOR   ATTACHMENT.  [CHAP.  "V. 

it  could  not  be  dissolved.^  Under  the  same  law,  however,  it  was 
held,  that  where  any  sum  the  plaintiflF  might  state  would  be  con- 
jectural, it  could  not  serve  as  the  basis  of  a  positive  oath,  and  an 
attachment  would  not  lie ;  the  case  being  that  of  one  partner  suing 
another  for  a  specific  amount,  as  a  debt  resulting  from  the  partner- 
ship transactions,  when  there  had  been  no  settlement  of  the  part- 
nership accounts.^ 

Where  the  law  required  the  plaintifif  to  "  make  oath  to  the  debt 
or  sum  demanded,  and  that  no  part  of  the  same  is  paid,  and  that 
he  doth  not  in  any  wise,  or  upon  any  account  whatever,  stand  in- 
debted to  the  defendant,"  a  plaintiff  made  affidavit  to  the  amount 
of  his  claim  and  that  no  part  thereof  was  paid,  and  "  that  he  is 
indebted  to  the  defendant  some  small  amount,  but  he  does  not 
know  how  much,  contracted  since  this  note  was  given  "  ;  and  it 
was  held  a  sufficient  affidavit.^ 

In  Georgia  this  case  is  reported.  The  affidavit  stated  that  the 
defendant  "  Avas  indebted  to  the  plaintiff  in  the  sum  of  one  thou- 
sand dollars,  which  may  be  subject  to  a  set-off,  for  an  unascer- 
tained sum  which,  on  final  settlement,  will  be  due  the  defendant 
from  plaintifif,  for  certain  improveirients,"  &g.  It  was  objected 
that  no  sum  certain  was  sworn  to,  but  the  court  held  otlierwise, 
saying :  "  Any  debt  may  be  subject  to  be  set  off  by  another  debt. 
But  until  one  debt  has  been  set  against  another,  both  remain  debts. 
"When  there  is  an  action,  there  can  be  no  set-oflf,  until  the  defend- 
ant has  done  something  showing  a  willingness  in  him  for  his  debt 
to  be  set  against  the  plaintiff's  debt."* 

Under  a  statute  requiring  "  an  affidavit,  stating  that  the  defend- 
ant is  indebted  to  the  plaintifif,  and  specifying  the  amount  of  such 
indebtedness  as  near  as  may  be,  over  and  above  all  legal  set-ofifs," 
an  afifidavit  was  held  bad,  which  stated  that  the  defendant  was  in- 
debted to  the  plaintiff  "  in  the  sum  of  $1657.90,  as  near  as  this 
deponent  can  now  estimate  the  sarnie,  over  and  above  all  legal  set- 
offs." The  court  said :  "  The  statute  gives  no  latitude  of  state^ 
ment  in  the  affidavit  as  to  the  amount  due.  Some  fixed  and  defi- 
nite sum,  to  which  the  affiant  can  positively  depose,  must  be 
named.  In  estimating  the  amount,  so  positively  stated,  the  ut- 
most exactness  is  not  required.     It  may  be  a  little  more  or  a  little 

1  Flower  v.  Griffith,  12  Louisiana,  345. 

2  Levy  V.  Levy,  11  Louisiana,  581. 

3  Turner  v.  McDaniel,  1  M'Cord,  552. 

*  Holston  Man.  Co.  v.  Lea,  18  Georgia,  647. 
[68] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  98 

less  than  the  real  amount  without  vitiating  the  proceedings,  pro- 
vided that  the  sum  be  such  that  the  affiant  can  conscientiously 
depose  to  its  correctness.  But  the  amount  named  must  be  cer- 
tain, leaving  no  room  for  speculation  on  the  face  of  the  affida- 
vit." i 

§  96.  If  the  statute  do  not  require  it  to  be  stated  how  the  debt 
accrued,  it  is  no  objection  to  the  affidavit  that  it  is  not  stated  ;2 
but  if  required,  a  failure  to  state  it  will  be  fatal  to  the  affidavit.^ 
If  the  affidavit  make  no  reference  to  the  declaration  or  petition,  as 
indicating  the  cause  of  action,  it  will  be  understood  as  being  the 
same  therein  set  forth  ;  and  if  it  state  that  the  defendant  is  in- 
debted in  any  other  manner  than  as  therein  declared,  it  will  be 
bad ;  for  the  debt  sued  on  must  be  the  one  sworn  to.*  Where  a 
statute  required  the  plaintiff  to  state  in  his  affidavit  the  nature 
and  amount  of  the  defendant's  indebtedness,  a  statement  that  the 
defendant  was  indebted  "  in  the  sum  of  fourteen  hundred  dollars 
by  his  certain  instrument  of  writing  signed  by  him,"  was  deemed 
sufficient.^ 

§  97.  The  most  important  point  in  the  affidavit  is  that  which 
sets  forth  the  grounds  on  wliich  the  attachment  is  sued  out ;  and 
it  is  in  reference  to  that,  that  the  great  mass  of  the  decisions  con- 
cerning affidavits  have  been  rendered. 

This  subject  presents  itself,  under  different  statutes,  in  three 
distinct  phases  :  I.  Where  the  affidavit  is  required  simply  to  state 
the  existence  of  a  particular  fact,  declared  by  law  to  be  a  ground 
of  attachment ;  II.  Where  the  existence  of  such  fact  must  be 
proved  to  the  satisfaction  of  some  named  officer ;  and  III.  Where 
the  officer  must  be  satisfied  of  the  existence  of  such  fact,  by  proof 
presented  to  him  of  the  facts  and  circumstances  which  go  to  estab- 
lish its  existence.     Let  us  examine  these  points. 

§  98.  I.  WJiere  the  affidavit  must  state  simply  the  existence  of  a 
particular  fact,  as  a  ground  of  attachment.  Here,  nothing  is  requi- 
site but  conformity  to  the  language  of  the  statute.     The  affidavit, 

1  Lathrop  v.  Snyder,  16  Wisconsin,  293. 

2  Starke  v.  Marshall,  3  Alabama,  44;  O'Brien  v.  Daniel,  2  Blackford,  290. 

3  In  re  Hollingshead,  6  Wendell,  553 ;  Smith  v.  Luce,  14  Ibid.  237. 
*  Cross  V.  Eichardion,  2  Martin,  n.  s.  323. 

^  Phelps  V.  Young,  1  Illinois  (Breese),  255. 

[69'' 


§  99  AFFIDA\aT   FOR   ATTACHMENT.  [CHAP.  V. 

as  we  shall  presently  see,  need  not  be  literally  according  to  the 
■words  of  the  law ;  a  substantial  compliance  is  sufficient.^  The 
officer  whose  duty  it  is  to  issue  the  writ,  inquires  only  whether 
there  is  this  conformity.  If  he  finds  it  to  exist,  he  issues  the  writ, 
in  a  ministerial,  not  in  a  judicial,  capacity.  He  is  not  to  be  satis- 
fied judicially  that  the  alleged  fact  is  true  ;  but  is  simply  to  see 
whether  it  is  sworn  to.  If  sworn  to,  he  is  fully  justified  in  issuing 
the  process,  and  cannot  be  affected  by  any  subsequent  ascertain- 
ment of  the  groundlessness  or  falsity  of  the  affidavit. 

§  99.  II.  Where  the  existence  of  the  ground  of  attachment  must  he 
proved  to  the  satisfaction  of  the  officer.  In  this  case,  the  officer  acts 
in  a  judicial,  as  well  as  a  ministerial  capacity.  His  judgment  must 
be  satisfied  that  the  fact  exists,  before  he  issues  the  writ.  Hence, 
evidence  must  be  presented  to,  and  acted  on  by,  him.  He  cannot 
act  upon  his  own  knowledge,  or  mere  belief,  however  well  founded 
it  may  be,  nor  upon  report  or  information.  If  proof  be  presented 
to  him,  a  mere  error  in  judgment  as  to  its  legality  or  sufficiency 
will  impose  no  liability  on  him  ;  but  there  must  be  some  proof. 
If  he  issues  the  writ  without  proof,  he  is  liable  to  the  defendant 
as  a  trespasser.2  If  the  proof  has  a  legal  tendency  to  make  out 
the  case  required  by  the  statute,  although  it  be  so  slight  and  in- 
conclusive that,  upon  a  direct  proceeding  to  review  it,  the  officer's 
action  in  granting  the  writ  would  be  reversed,  yet  in  a  collateral 
action  the  process  will  be  deemed  valid.  It  will  be  so  deemed 
because  the  officer,  having  proof  presented  to  him,  and  being  re- 
quired by  law  to  determine  upon  the  weight  of  the  proof,  has 
acted  judicially  in  making  his  determination.  His  decision  may 
be  erroneous,  but  is  not  void.^ 

The  first  point,  then,  to  be  determined  is,  what  is  competent 
evidence  to  present  to  the  officer  ?  It  must  be  legal  evidence,  — 
not  the  plaintiff's  own  oath,  unless  the  statute  expressly  say  so.^ 

The  next  point  is,  what  is  sufficient  proof?  The  Supreme  Court 
of  New  York  sustained  an  attachment  issued  by  a  justice  of  the 
peace,  upon  affidavits  made  by  witnesses  that  they  believed  the  de- 
fendant resided  out  of  the  State.  The  court  held  the  proof  suf- 
ficient.^    The  legislature  of  that  State  afterwards  modified  the 

1  Post,  §  107. 

2  Vosburgh  v.  Welch,  11  Johns.  175. 

8  Skinnion  v.  Kelley,  18  New  York,  355;  Hall  v.  Stryker,  27  Ibid.  596. 

*  Brown  v.  Hinchman.  9  Johns.  75.  ^  Matter  of  Fitch,  2  Wendell,  298. 

[70] 


CHAP,  v.]  AFFroA^^T   FOR   ATTACHMENT.  §  100 

statute,  so  as  to  prevent  the  issue  of  attachments  on  the  ground 
of  mere  belief;  but  Cot\*ex,  J.,  after  the  change,  upon  a  review 
of  the  authorities  in  similar  cases  in  other  branches  of  the  law, 
said  that  under  the  previous  statute,  —  the  same  which  was  con- 
strued in  the  decision  of  the  Supreme  Court  just  referred  to,  —  he 
should  not  hesitate  in  receiving  the  oath  of  mere  belief.^ 

§  100.  III.  Where  the  officer  must  he  satisfied  of  the  existence  of 
the  ground  of  attachment,  hy  proof  of  particular  facts  and  circum- 
stances tending  to  establish  its  existence.  In  this  case,  as  in  the  last, 
the  officer  acts  both  judicially  and  ministerially.  He  passes  ju- 
dicially upon  the  competency  of  the  evidence,  and  also  upon  the 
sufficiency  of  the  proof  to  establish  the  existence  of  the  ground 
of  attachment.  For  instance,  if  the  statute  authorize  an  attach- 
ment "  wiienever  it  shall  satisfactorily  appear  to  the  officer  that 
the  defendant  is  about  to  remove  from  the  county  any  of  his  pro|> 
erty,  with  intent  to  defraud  his  creditors,"  and  require  nothing 
more,  it  would  be  a  case  of  the  description  mentioned  under  the 
next  preceding  head  ;  and  under  the  views  expressed  by  the  New 
York  court,  an  affidavit  of  belief  would  be  sustained,  if  the  officer 
acted  upon  it  as  sufficient :  but  if  the  statute  go  further  and  re- 
quire that,  before  the  attachment  shall  issue,  "  the  plaintiff  shall 
prove  to  the  satisfaction  of  the  officer  the  facts  and  circumstances 
to  entitle  him  to  the  same,"  then  a  new  exigency  is  created,  re- 
quiring evidence,  which  he  shall  deem  competent,  to  be  given  of 
those  facts  and  circumstances ;  and  that  the  facts  and  circum- 
stances, when  proved,  shall  satisfy  him  that  the  particular  ground 
of  attachment  relied  on,  exists.  Hence,  though  the  facts  and  cir- 
cumstances be  proved  by  competent  evidence,  if  they  do  not  in  his 
judgment  prove  the  main  fact,  he  should  not  issue  the  writ ;  and 
if  he  do  issue  it,  his  action  is  liable  to  be  revised  and  overruled, 
either  on  the  ground  that  the  evidence  submitted  to  him  was  in- 
competent, or  that  it  was  insufficient. 

In  reference  to  the  affidavit  in  such  a  case,  it  has  been  decided, 
that  the  belief  of  the  affiant  that  the  defendant  was  about  to  do  a 
particular  act,  the  impending  performance  of  which  would  author- 
ize an  attachment,  would  not  sustain  an  attachment.  "The  plain- 
tiff's own  belief,"  said  the  court,  "  is  neither  a  fact  nor  a  circum- 
stance upon  which  the  justice  can  exercise  his  judgment.     It  is 

1  Ex  parte  Hajnes,  18  "Wendell,  611. 

[71] 


§  100  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

not  sufficient  that  the  plaintiff  is  satisfied  of  the  unlawful  acts  or 
intentions  of  the  defendant.  The  justice  must  be  satisfied,  and 
he  must  be  so  satisfied  from  proof  of  facts  and  circumstances ;  not 
the  belief  of  any  one."  ^  It  has  likewise  been  held,  that  an  affi- 
davit stating  the  information  and  belief  of  the  party  making  it,  as 
to  certain  facts,  is  not  sufficient  proof  to  authorize  the  writ  to  is- 
sue.^ And  though  the  affidavit  was  unqualified  in  its  terms  that 
the  defendant  had  left  the  State  with  intent  to  defraud  his  credit- 
ors, it  was  held  insufficient,  because  it  did  not  state  the  facts  and 
circumstances.  The  court  said  :  "  Affirming  that  a  party  has  left 
the  State  with  intent  to  defraud  his  creditors,  may  be  predicated 
more  upon  matters  of  opinion,  or  belief,  than  upon  fact.  The 
affirmant  may  honestly  believe,  and  thus  affirm  it  in  general 
terms  ;  whereas,  if  called  to  state  the  facts  and  circumstances 
upon  which  he  reached  the  conclusion,  the  officer  (beiifg  unable 
to  exercise  his  judgment  in  the  matter)  might  well  differ  from 
him."  ^  But  where  the  matter  to  be  proved  is  in  itself  a  single 
and  complete  fact,  not  depending  on  other  facts  and  circumstances 
to  establish  its  existence,  an  affirmation  of  the  fact  in  direct  terms 
is  sufficient.  Such  is  the  case  where  the  non-residence  of  the  de- 
fendant is  the  ground  of  attachment.  There,  no  "  facts  and  cir- 
cumstances "  are  needed  to  prove  the  non-residence :  itself  is  the 
fact  and  circumstance.*  But  in  such  case  of  a  single  fact,  no  more 
than  in  any  other,  is  the  affidavit  of  belief  competent  proof.^ 

While,  however,  it  is  not  sufficient  for  an  affidavit  to  state  cer- 
tain facts  merely  upon  the  information  and  belief  of  the  party, 
yet  information  is  not  to  be  entirely  rejected  as  evidence.  Thus, 
where  the  allegation  is,  that  the  debtor  has  absented  himself  from 
his  residence  in  an  illegal  manner,  information  obtained  from  his 
family,  on  inquiry  at  his  residence,  may  be  admitted,  in  connection 
with  other  facts,  to  show  that  he  has  left  home  ;  when  he  went 
away  ;  where,  and  upon  what  business  he  went ;  and  how  long  he 
intended  to  be  absent.  But  such  evidence,  obtained  from  other 
sources,  would  not  be  admissible.  The  informant  should  be  called. 
It  may  be,  too,  that  the  party  making  the  affidavit  should  be  al- 

1  Smith  V.  Luce,  14  "Wendell,  237  ;  Mott  v.  Lawrence,  17  Howard  Pract.  R.  559. 

2  Tallman  v.  Bio-elow,  10  Wendell,  420;  Ex  parte  Haynes,  18  Ibid.  611 ;  Matter  of 
Faulkner,  4  Hill  (N.  Y.),  598;  Matter  of  Bliss,  7  Ibid.  187 ;  Pierse  v.  Smith,  1  Minne- 
sota, 82;  Morrison  v.  Lovejoy,  6  Ibid.  183. 

3  Ex  parte  Robinson,  21  Wendell,  672. 

*  Matter  of  Brown,  21  Wendell,  316.      ^  Kingsland  v.  Cowman,  5  Hill  (N.  Y.),  608. 

[72] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACmiENT.  §  101 

lowed  to  speak  upon  information  concerning  the  solvency  of  the 
debtor,  provided  the  information  come  from  persons  who  are  not 
interested  in  the  proceedings  against  him.  But  an  affidavit  that 
the  party  has  been  informed  and  believes  that  the  debtor  is  insol- 
vent, that  he  owes  a  large  amount  of  money,  or  the  like,  without 
the  addition  of  any  fact  within  the  knowledge  of  the  party,  or 
stating  when  or  from  whom  the  intelligence  was  received,  cannot 
be  regarded  as  of  any  legal  importance.^  But  where,  in  any  case, 
information  is  allowed  to  be  stated  in  the  affidavit,  it  will  be  of  no 
value,  unless  the  party  swear  that  he  believes  it  to  be  true.^ 

§  101.  Usually  the  plaintiff  may  allege  as  many  grounds  of  at 
tachment,  within  the  terms  of  the  law,  as  he  may  deem  expedient. 
In  doing  so,  the  several  grounds  should  be  stated  cumulatively ; 
and  if  any  one  of  them  be  true,  it  will  sustain  the  attachment, 
though  all  the  others  be  untrue.^  An  affidavit  alleging  one  or  the 
other  of  two  or  more  distinct  grounds,  would  be  bad,  because  of 
the  impossibility  of  determining  which  is  relied  on  to  sustain  the 
attachment.  Thus,  under  a  statute  which  authorized  an  attach- 
ment,—  1.  Where  the  defendant  is  about  to  remove  his  effects; 

2.  Where  he  is  about  to  remove  privately  out  of  the  county ;  and 

3.  When  he  absconds  or  conceals  himself,  so  that  the  ordinary 
process  of  law  cannot  be  served  on  him  ;  an  attachment  was  ob- 
tained, on  an  affidavit  that  the  defendant  "  was  about  to  remove 
from  and  without  the  limits,  or  so  absconds  and  conceals  himself, 
that  the  ordinary  process  of  law  cannot  be  served  on  him  " ;  and 
it  was  set  aside.  The  first  member  of  the  oath  was  plainly  not 
within  the  statute,  and  though  the  latter  was,  yet  it  was  rendered 
inefficient  by  its  connection  with  the  former,  through  the  disjunc- 
tive conjunction  or,  whereby  it  became  uncertain  which  state  of 

.  facts  existed.*  Subsequently  the  same  court,  in  a  similar  case, 
ruled  tlie  same  way  again,  and  intimated  that  they  would  consider 
an  affidavit,  in  the  disjunctive,  as  bad,  although  either  of  the  facts 
deposed  to  might  be  sufficient.^ 

1  Matter  of  Bliss,  7  HUl  (N.  Y.),  187.  2  Decker  v.  Bryant,  7  Barbour,  182. 

3  McCollem  v.  White,  23  Indiana,  43. 

*  Hagood  V.  Hunter,  1  M'Cord,  511;  Barnard  v.  Sebre,  2  A.  K.  Marshall,  151; 
Davis  V.  Edwards,  Hardin,  342. 

=  Devall  V.  Taylor,  Cheves,  5 ;  Jewel  v.  Howe,  3  Watts,  144 ;  Wray  v.  Gilmore,  1 
Miles,  75  ;  Shipp'  v.  Davis,  Hardin,  65  ;  Hawley  v.  Delmas,  4  California,  195  ;  Rogers 
V.  Ellis,  1  Handy,  48;  People  v.  Recorder,  6  Hill  (N.  Y  ),  429;  Stacy  v.  Stichton,  9 
Iowa,  399 ;  Hopkins  v.  Nichols,  22  Texas,  206. 

[73] 


§  102  AFFIDAVIT   FOR   ATTACHMENT.  [CIIAP.  V. 

§  102.  Let  it  be  observed,  however,  that  where  the  disjimctivo 
or  is  used,  not  to  connect  two  distinct  facts  of  dilTereut  natures, 
but  to  characterize  and  inchidc  two  or  more  phases  of  the  same 
fact,  attended  with  tlie  same  results,  the  construction  just  men- 
tioned would  be  inapplicable.  For  instance,  where  the  statute 
authorized  an  attachment  when  "  the  defendant  absconds,  or  se- 
cretes himself,"  it  was  considered  that,  from  the  difficulty  of  deter- 
mhiing  which  was  the  Hict,  the  language  comprised  but  one  ground, 
and  the  disjunctive  or  did  not  render  the  affidavit  uncertain.^  ''  It 
is,"  said  the  court,  "  often  difficult,  if  not  imjjracticable,  for  the 
creditor  to  ascertain  whether  his  debtor  absconds  or  secretes  him- 
self: he  has  to  rely  frequently  upon  such  information  as  his  fam- 
ily or  friends  will  give  him,  which  cannot  always  be  confidt'd  in : 
hence,  to  allow  sufficient  latitude  to  the  creditor  in  making  his 
affidavit,  and  to  j»revcnt  failures,  from  havijig  mistaken  the  cause 
why  the  debtor  is  liable  to  the  remedy,  the  law  has  very  properly 
provided  for  its  issuance  hi  the  alternative."  ^ 

Under  a  similar  statute,  the  same  view  has  been  expressed  in 
Tennessee.  The  language  of  the  statute  was,  "so  absconds  or  con- 
ceals himself  that  the  ordinary  process  of  law  cannot  be  served  on 
him."  It  was  contended  that  "  absconds  "  constituted  one  cause, 
and  "  conceals"  another  ;  but  the  court  did  not  so  hold.  "  For," 
said  the  court,  "  although  the  two  words  are  connected  by  or  in- 
stead of  and^  yet  the  sense  of  the  sentence  shows  that  or  is  used 
copulatively,  constituting  both  '  absconds '  and  '  conceals,'  or  either 
of  them,  a  sufficient  cause  for  suing  out  the  attachment.  In  tlie 
nature  of  things,  a  plaintiff  cannot  tell  whether  a  party  absconds 
or  conceals  himself.  He  may  suppose  he  absconds,  when  he  only 
conceals  himself,  and  vice  versa.  To  compel  him  to  swear  that  the 
party  is  doing  the  one  only,  would  involve  the  plaintiff  in  endless 
difficulty.  Besides  the  question  of  conscience  that  must  always 
exist  with  the  party  about  to  take  the  oath,  he  would  be  constantly 
in  danger  of  having  his  attachment  abated  on  the  plea  of  the  de- 
fendant, who,  though  he  might  not  have  absconded,  was  never- 
theless concealed,  or,  if  not  concealing  himself,  may  have  been 
absconding.  We  think,  therefore,  that  the  words  '  so  absconds  or 
conceals  himself  constitute  but  one  cause."  ^     And  so,  in  Missis- 

^  Johnson  v.  Hale,  3  Stewart  &  Porter,  331.        ^  Cannon  v.  Logan,  5  Porter,  77. 
2  Conrad  v.  McGce,  9  Yerger,  428 ;  Goss  r.  Gowing,  5  Richardson,  477 ;  Commer- 
cial Bank  v.  Ullman,  10  Smedes  &  Marshall,  411 ;  Hopkins  v.  Nichols,  22  Texas,  206. 
[74] 


CHAP   v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  103 

sippi,  under  a  statute  allowing  attachment,  on  affidavit  that  the 
defendant  '•  hath  removed,  or  is  removing  out  of  the  State,  or  so 
absconds,  or  privately  conceals  himself,  that  the  ordinary  process 
of  law  cannot  be  served  on  him."  The  affidavit  was  in  the  very 
words  of  the  statute,  and  was  objected  to,  because  in  the  alterna- 
tive ;  but  the  court  held  it  sufficient ;  considering  that  the  ma- 
terial point  required  by  the  statute  was,  that  the  ordinary  process 
could  not  be  served,  and  that  the  plaintiff  might  well  know  that, 
without  knowing  whether  the  defendant  had  removed,  absconded, 
or  concealed  himself.^  And  in  New  York,  an  affidavit  that  the 
defendant  "  has  secretly  departed  from  this  State,  with  intent  to 
defraud  his  creditors,  or  to  avoid  the  service  of  civil  process,  or 
keeps  himself  concealed  therein  with  the  like  intent,"  was  su&- 
taiiied.2 

§  103.  Wliile  it  is  always  a  safe  rule  to  follow  strictly  the  lan- 
guage of  tlie  statute,  it  is  not  in  every  case  necessary.  Qualifying 
words  should  not  be  omitted  ;  but  the  omission  of  words  which 
have  not  that  character,  while,  by  those  remaining,  the  sense  and 
scope  of  the  law  are  fulfilled,  will  not  vitiate  the  affidavit.  For 
example,  where  it  was  required  that  the  affidavit  should  state  that 
the  defendant  was  "justly  indebted  "  to  the  plaintiff,  it  was  con- 
sidered that  the  word  "justly"  was  not  intended  to  qualify  the 
word  "  indebted,"  and  that  its  omission  from  the  affidavit  was  no 
material  defect.^  So,  where  the  statute  required  the  affidavit  to 
state  that  the  defendant  "  is  in  some  manner  about  to  dispose  of 
his  property  with  intent  to  defraud  his  creditors,"  it  was  held,  that 
the  omission  of  the  words  "  in  some  manner  "  did  not  vitiate  the 
affidavit.*  So,  under  a  statute  requiring  an  affidavit  that  the  de- 
fendant is  justly  indebted  to  the  plaintiff  "  in  a  sum  exceeding  fifty 
dollars,"  and  that  the  sum  sliould  be  specified,  it  was  held,  that  a 
statement  of  the  defendant's  indebtedness  in  the  sum  of  8300  was 
sufficient,  witliout  inserting  the  words,  "  in  a  sum  exceeding  the 
sum  of  fifty  dollars."  ^  But  under  a  statute  requiring  the  affida- 
vit to  state  that  the  indebtedness  sworn  to  "  is  due  upon  contract 

1  Bosbyshcll  v.  Emanuel,  12  Smedes  &  Marshall,  63. 

2  Van  Alstyne  v.  Erwine,  1  Keman,  3.31. 

8  Liven;,'0()d  v.  Shaw,  10  Missouri,  273.     Sed  contra,  Thompson  r.  Towson,  I  Harm 
&  McHenry,  504. 
*  Drake  v  Hager,  10  Iowa,  556. 
6  Hughes  V.  Martin,  1  Arkansas,  386;  Hughes  v.  Stinnett,  9  Ibid.  211. 

[75] 


§  105  AFFIDAVIT   FOR   ATTACHSIENT.  [CIIAP.  V. 

express  or  implied,"  it  was  held,  that  the  word  due  was  intended, 
not  only  to  show  that  the  demand  arose  upon  contract,  but  also  as 
indicating  that  the  time  for  the  payment  of  the  del  it  lias  arrived  ; 
and  that  the  omission  to  aver  that  the  debt  was  "  due  upon  con- 
tract "  was  fatal,  though  from  the  terms  of  the  affidavit  it  was 
very  clear  that  it  arose  from  contract.^ 

§  104.  Uncertainty  in  the  aflidavit  will  vitiate  it.  Thus,  where 
the  law  required  the  affidavit  to  show  that  the  cause  of  action  was 
founded  on  contract,  and  the  plaintiff  did  not  swear  positively 
to  a  contract,  but  stated  certain  facts,  from  which  perhaps  a  jury 
might  infer  a  contract,  and  perhaps  not ;  the  affidavit  was  held 
insufficient.^  And  wlicre  an  affidavit  stated  that  the  defendant 
"  is  justly  indebted  to  plaintiff  (in  a  specified  sum)  for  services 
rendered  and  to  be  rendered  by  deponent,  as  clerk,  part  due,  and 
a  part  of  said  sum  not  due  "  ;  it  was  held  defective,  for  uncer- 
tainty as  to  what  was  in  fact  due.^  So,  an  affidavit  in  the  follow- 
ing terms  was  held  insufficient,  on  account  of  uncertainty:  "A., 
plaintiff,  states  that  B.,  the  defendant,  is  bond  fide  indebted  to  him 
in  the  sum  of  82,053.37  over  and  above  all  discounts,  and  the  said 
A.,  at  the  same  time,  produces  the  account  current  which  is  here- 
unto annexed,  by  which  the  said  B.  is  so  indebted  ;  and  the  said  A. 
likewise  states  that  he  hath  drawn  on  the  said  B.  for  the  sum  of 
$1,500,  and  also  for  the  sum  of  $2,223.10,  which  drafts,  though 
not  due,  the  said  A.  understands  from  the  said  B.,  and  verily  be- 
lieves, will  not  be  paid,  and  further,  that  the  latter  draft  for 
$2,223.10  hath  never  been  accepted  by  the  said  B.,  and  the  said 
A.  hath  therefore  allowed  no  credit  or  discount  for  said  drafts. 
He  further  states  that  B.  informed  him  some  time  ago,  that  he 
would  be  entitled  to  charge  against  said  A.'s  account,  for  some  loss 
that  he  expected  would  accrue  in  the  sale  of  certain  flour  on  their 
joint  account ;  no  account  has  been  exhibited  stating  the  amount 
of  such  loss,  and  therefore  he  hath  allowed  said  B.,  in  stating  his 
account,  no  credit."  * 

§  105.  Surplusage  in  an  affidavit,  not  inconsistent  with  the 
substantial  averment  required  by  the  statute,  will  not  vitiate  it. 

1  Bowen  v.  Slocum,  17  Wisconsin,  181. 

2  Jacoby  v.  Gogell,  5  Sergeant  &  Rawle,  450 ;  Quarles  v.  Robinson,  1  Chandler,  29. 
8  Friedlander  v.  Myers,  2  Louisiana  Annual,  920. 

*  Munroe  v.  Cocke,  2  Cranch  C.  C.  465. 
[76] 


CHAP,  v.]  AFFroA^^T   FOR   ATTACHMENT.  §  106 

Thus,  where  the  person  making  the  affidavit  stated  sundry  acts  of 
the  defendant,  and  closed  with  these  words,  — "  affiant  fm-ther 
saith  he  believes  the  facts  above  stated  are  true,  and  that  said 
defendant  is  by  the  means  above  stated,  concealing  his  effects  so 
that  the  claims  aforesaid  will  be  defeated  at  the  ordinary  course 
of  law " ;  which  averment  was  in  compliance  with  the  law ;  it 
was  lield,  that  the  unnecessary  statements  did  not  vitiate  the  affi- 
davit.^ So,  where  the  affidavit  stated  that  "  the  defendant  resided 
out  of  the  State  of  Louisiana,  having  acquired  no  legal  residence 
in  the  State  " ;  it  was  held,  that  the  statement  of  the  reason  for 
considering  him  a  non-resident,  did  not  vitiate  it.^  But  if  the 
surplusage  be  of  such  character  as  substantially  to  impair  the 
main  allegation  of  the  affidavit,  the  whole  will  thereby  be  vitiated/^ 

§  106.  All  the  elements  of  positiveness,  knowledge,  informa- 
tion, or  belief,  conjointly  or  separately,  which  the  statute  may  re- 
quire in  the  making  of  an  affidavit,  should  therein  appear,  or  be 
substantially  included  in  its  terms ;  or  it  will  be  bad.  Thus,  if 
a  statute  requires  a  fact  to  be  sworn  to  in  direct  terms,  it  is  not 
complied  with  by  a  party's  swearing  that  he  is  "  informed  and  be- 
lieves "  the  fact  to  exist.*  And  under  a  statute  authorizing  an 
attachment  "  where  there  is  good  reason  to  believe  "  the  existence 
of  a  particular  fact,  an  affidavit  that  "it  is  the  plaintitf's  belief" 
that  the  fact  existed,  was  held  insufficient :  he  should  have  stated 
that  he  had  good  reason  to  believe  and  did  believe  it.^  Under  a 
law  requiring  the  party  to  swear  that  a  certain  fact  did  not  exist 
"  within  his  knowledge  or  belief,"  an  affidavit  was  held  bad,  which 
failed  to  state  the  want  of  his  belief.^  And  so,  where  the  party 
was  required  to  swear  "  to  the  best  of  his  knowledge  and  belief," 
and  he  swore  only  to  the  best  of  his  belief.^  And  so,  where  he  was 
required  to  swear  that  he  "  verily  believes,"  and  he  swore  "  to  the 
best  of  his  knowledge  and  belief."  ^ 

1  Spoar  r.  Kin?,  6  Smedcs  &  Marshall,  276 ;  Van  Kirk  v.  Wilds,  11  Barbour,  520 ; 
Edwards  >:  Flatboat  Blacksmith,  33  Mississippi,  190 ;  Auter  v.  Steamboat  J.  Jacobs, 
34  Ibid.  269. 

2  Varlev  r.  Farior,  6  Louisiana  Annual,  725. 
8  Emmett  v.  Yeijrh,  12  Ohio  State,  335. 

*  Deuprce  v.  Eisenach,  9  Georgia,  598  ;  Ex  parte  Havnes,  18  Wendell,  611 ;  Cadwell 
V.  Coljrate,  7  Bart)our.  253  ;  Dyer  v.  Flint,  21  Illinois,  80  ;  Archer  v.  Claflin,  31  Ibid. 
306;  Williams  r.  Martin,  1  Metcalfe  (Ky.),  42;  Wilson  v.  Arnold,  5  Michigan,  98. 

5  Stevenson  v.  Bobbins,  5  Missouri,  18.  ''  Bergh  v.  Jayne,  7  Martin,  x.  s.  609. 

6  Cobb  V.  Force,  6  Alabama,  46»  «  Stadler  v.  Parmlee,  10  Iowa,  23. 

[77] 


§  107  AFFIDAVIT   FOR   ATTACHMENT.  [cHAP.  V. 

But  where  the  aflRant  was  required  to  state  that  the  facts  are 
within  his  personal  knowledge,  or  that  he  is  informed  and  believes 
them  to  be  true,  a  positive  oath  of  the  facts  was  held  sufficient, 
though  he  did  not  add  that  he  had  personal  knowledge  of  them, 
or  believed  them  to  be  true  ;  it  being  considered  that  tlie  positive 
oath  implied  both.^  And  so,  under  a  statute  requiring  an  affida- 
vit "  showing  "  the  existence  of  a  certain  fact,  it  was  held,  that 
an  affidavit  of  such  fact,  as  the  affiant  "  verily  believed,"  was 
good ;  which  was,  in  effi3ct,  to  decide  that  the  party's  belief  was  a 
sufficient  "  showing,"  to  fdl  the  terms  of  the  statute.^ 

§  107.  While  it  is  in  all  cases  advisable  to  follow  the  exact  lan- 
guage of  the  statute,  yet  if  tlie  words  of  the  affidavit  are  in  sub- 
stantial comi)liance  with  the  terms  of,  or  necessarily  and  properly 
imply  the  case  provided  for  by,  tlie  statute,  it  will  be  sufficient.^ 
Thus,  where  the  law  authorized  an  attachment  when  the  dcl)tor 
"  is  about  to  convey,  assign,  remove,  or  dispose  of  any  of  his 
property  or  effiicts,  so  as  to  defraud,  hinder,  or  delay  his  credit- 
ors " ;  it  was  held,  that  an  affidavit  alleging  that  the  defendant 
was  "  about  to  convey  his  property  so  as  to  hinder  or  delay  his 
creditors,"  was  equivalent  to  alleging  fraud,  and  that  therefore  it 
was  not  necessary  to  use  the  word  "  defraud."  *  Where  the  cause 
for  which  an  attachment  miglit  issue  was,  that  "  he  resides  out  of 
this  State,"  an  affidavit  that  the  defendant  "  is  a  non-resident," 
was  considered  sufficient.^  Where  the  statute  authorized  an  at- 
tachment upon  an  affidavit  that  the  defendant  is  a  "non-resident," 
an  affidavit  that  he  "  is  not  now  an  inhabitant  of  this  State  "  was 
sustained.^  Where  the  language  of  the  statute  was,  "  that  the 
debtor  so  ahsconds  that  the  ordinary  process  of  law  cannot  be 
served  on  him,"  an  affidavit  that  the  debtor  hath  absconded  was 
considered  as  complying  with  the  substantial  requirements  of  the 
law.'^  An  affidavit  that  the  defendant  "  is  about  removing,"  was 
decided  to  be  in  conformity  to  the  statute  which  provided  for  an 
attachment  where  the  debtor  "  is  removing."  ^  Where  the  statute 
gave  an  attachment  when  the  debtor  "  is  removing  or  about  to  re- 

1  Jones  V.  Leake,  11  Smedes  &  Marshall,  591. 

2  Trew  V.  Gaskill,  10  Indiana,  265;  McNamara  v.  Ellis,  14  Ibid.  516. 

3  Van  Kirk  v.  Wilds,  11  Barbour,  520. 
*  Curtis  V.  Settle,  7  Missouri,  452. 

6  Graham  v.  RufF,  8  Alabama,  171.       '^  Wallis  v.  "Wallace,  6  Howard  (Mi.),  254. 
6  Wiltse  V.  Stearns,  13  Iowa,  282.         ^  Lgg  j,.  Peters,  1  Smedea  &  Marshall,  503. 

[78] 


CHAP.  V.J  AFFIDAVIT   FOR   ATTACHJIENT. 


§107 


move  himself  or  his  property  beyond  the  limits  of  the  State,"  and 
suit  was  brought  against  the  owner  and  master  of  a  steamboat, 
alleging  that  he  was  "  about  to  remove  the  said  steamboat  beyond 
the  limits  of  this  State";  it  was  considered  that,  however  defec- 
tive the  allegation  might  be,  in  stating  the  defendant  to  be  about 
to  remove  only  a  single  piece  of  property,  yet  that  it  was  equiva- 
lent to  stating  that  he  was  about  to  remove  himself,  since,  as  he 
was  master  of  the  boat,  if  he  removed  the  boat,  his  relation  to 
her  necessarily  involved   his  own  removal.^     Where  the  statute 
required  the  affidavit  to  state  "  that  the  defendant  is  about  to  re- 
move himself  and  his  effects  so  that  the  claim  of  the  plaintiff  will 
be  defeated,"  a  statement  « that  the  defendant  will  remove  him- 
self and  his  effects  beyond  the  limits  of  the  State,  before  the  plain- 
tiff's claim  could  be  collected  by  the  ordinary  course  of  law,  and 
that  he  is  transferring  and  conveying  away  his  property,  so  that 
the  claim  of  the  plaintiff  will  be  defeated,  or  cannot  be  made  by 
the  regular  course  of  law,"  was  held  to  be  a  substantial  compliance 
with  the  law.2     Where  an  affidavit  stated  that  "A.,  B.,  and  C, 
merchants  and  partners,  trading  and  using  the  name  and  style  of 
A.  &  Co.,  are  justly  indebted  to  the  plaintiff  in  the  sum  of  $5,460, 
and  that  the  said  A.  <fe  Co.  reside  out  of  this  State  " ;  and  a  mo- 
tion was  made  to  dismiss  the  attachment,  because  the  affidavit  did 
not  state  that  the  individuals  constituting  the  firm  of  A.  &  Co. 
resided  out  of  the  State;  the  affidavit  was  held  sufficiently  certain, 
because  when  a  partnership  is  spoken  of  by  its  partnership  name, 
and  said  to  reside  or  not  to  reside  in  a  particular  place,  the  mean- 
ing is  presumed  to  be,  that  the  members  composing  the  partner- 
ship reside  or  do  not  reside  in  that  place.^     Where  the  statute 
required  an  oath  that  "  the  defendant  is  about  to  remove  from  the 
State,  so  that  tlie  ordinary  process  of  law  cannot  be  served  on 
him,"  an  affidavit  that  he  is  "  about  to  abscond  himself  and  his 
property  out  of  the  State,  so  that  the  process  of  law  cannot  be 
served  on  him,"  was  considered  as  equivalent  to  the  assertion  that 
he  is  about  to  remove  himself  and  property  out  of  the  State  pri- 
vately, and  as  substantially  within  the  requirement  of  the  statute.^ 
Where  the  statute  required  the  affidavit  to  state  "  the  amount  of 
the  sum  due;'  and  the  plaintiff  swore  that  the  defendant  was 

1  Run  van  v.  Morgan,  7  Humphrcvs,  210. 

2  Dandrid-e  v.  Stevens,  12  Smedes  &  Marshall,  72.^. 

8  Chambers  v.  Sloan,  19  Georgia,  84.  i  Ware  v.  Todd,  1  Alabama,  199. 

[791 


§  108  AFFroAVIT   FOR   ATTACHMENT.  [CIIAP.  V. 

"really  indebted"  to  him  in  a  certain  sum,  it  was  held,  tluit  the 
expression  conveyed  the  idea  of  a  debt  actually  Jiu:  and  payable, 
and  was  sufficient.^  Where,  in  enumerating  the  cases  in  which 
an  attachment  would  lie,  one  was  "  when  the  debtor  is  about  leav- 
ing permanently  the  State,"  and  in  a  subseqiftnt  part  of  the  samo 
statute,  in  relation  to  the  affidavit,  the  party  was  required  to  swear 
that  "  the  debtor  is  on  the  eve  of  leaving  the  State  forever  " ;  it 
was  held,  that  the  latter  requirement  was  fulfilled  by  an  affidavit 
declaring  that  "  the  defendant  was  about  leaving  the  State  perma- 
nently."^ Under  a  statute  giving  attachment  "  when  a  debtor  is 
concealing  or  about  removing  his  effi:cts  so  that  the  claim  of  a 
creditor  will  be  defeated,"  an  affidavit  that  a  debtor  "  is  about 
removing  from  the  State,  or  is  so  concealing  his  effects  as  to  de- 
feat the  creditor's  claim,"  was  held  sufficient.^  Under  a  statute 
authorizing  an  attachment  where  the  debtor  "  is  about  to  remove 
his  goods  out  of  this  State,"  an  affidavit  stating  that  the  defendant 
"  had  removed  part,  and  was  al)out  to  remove  the  remainder  of 
his  goods  and  effects  from  this  State,"  was  considered  as  comply- 
ing with  the  law.^  Where  an  attachment  might  issue  when  "  any 
person  hath  removed,  or  is  removing  himself  out  of  the  county 
privately,  or  so  absconds  or  conceals  himself,  that  the  ordinary 
process  of  law  cannot  be  served  on  him,?  an  affidavit  that  the 
defendant  "  was  removing  himself  out  of  the  county  privately," 
was  held  sufficient,  without  the  addition  of  the  words  "  so  that 
the  ordinary  process  of  law  cannot  be  served."  ^  Under  a  statute 
using  the  phrase  "  absconding  or  concealing  himself  or  his  prop- 
erty or  effiicts,"  an  affidavit  that  the  defendant  "  is  concealing 
his  property  and  effects,"  was  adjudged  sufficient.^ 

§  108.  Numerous  cases  of  insufficient  affidavits  are  reported. 
It  is  not  without  advantage  to  present  them  here.  In  doing  so, 
as  will  be  seen,  no  attempt  is  made  at  systematic  arrangement, 
.  but  they  are  given  in  the  order  they  were  met  with.  Under  a 
statute  authorizing  attachment,  where  "  the  debtor  is  removing 
out  of  the  county  privately,"  an  affidavit  that  he  "  intends  to  re- 

1  Parmelo  v.  Johnston,  15  Louisiana,  429. 

2  Sawyer  v.  Arnold,  1  Louisiana  Annual,  315. 

•  Commercial  Bank  v.  UUman,  10  Smedes  &  Marshall,  411. 

*  Mandel  v.  Peet,  18  Arkansas,  236. 

6  Bank  of  Alabama  v.  Berry,  2  Humphreys,  443. 
6  Boyd  V.  Buckingham,  10  Humphreys,  434. 
[80] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  108 

move"  is  not  sufficient.'^  So,  where  an  attachment  was  authorized 
when  the  debtor  "  absconds,"  and  the  affidavit  was  that  he  "  has 
absconded."  ^  go^  where  the  statute  stated  the  ground  of  attach- 
ment to  be  "  that  any  person  hath  removed,  or  is  removing  him- 
self out  of  the  county  privately";  and  the  affidavit  was,  that  the 
defendant  "  is  about  to  remove  himself  out  of  the  county,  so  that 
the  ordinary  process  of  law  cannot  be  served  upon  him."  ^  So, 
where  the  ground  of  attachment  was,  that  "  the  defendant  is 
about  to  remove  -his  property  out  of  the  State,  and  that  thereby 
the  plaintiff  will  probably  lose  the  debt,  or  have  to  sue  for  it  in 
another  State  " ;  and  the  affidavit  set  forth  as  the  consequence  of 
the  alleged  anticipated  removal  of  the  goods  of  the  defendant, 
that  "  the  ordinary  process  of  law  cannot  be  served  on  him."  * 
So,  where  the  statute  gave  an  attachment  when  "  the  debtor  is 
not  resident  in  the  State,"  and  the  affidavit  was  that  the  defend- 
ant "  is  not  at  this  time  within  the  State."  ^  So,  an  affidavit 
"  that  the  defendant  has  left  the  State  never  to  return,"  does  not 
comply  with  a  statute  requiring  an  averment  that  he  is  "  about  to 
remove  his  property  out  of  the  State."  ^  A  statute  authorized  an 
attachmeijt  upon  an  affidavit  that  "  the  debtor  is  either  on  the  eve 
of  leaving  the  State  permanently,  that  he  has  left  it  never  again 
to  rettirn,  that  he  resides  out  of  the  State,  or  that  he  conceals 
himself  in  order  to  avoid  being  cited."  An  affidavit  that  the  de- 
fendant "  attempted  to  depart  from  the  State  permanently,  and 
that  he  concealed  himself  so  as  to  avoid  being  cited  to  appear  and 
answer  the  demand  of  the  plaintiff,  and  that  he  is  about  to  re- 
move his  property  out  of  the  State,"  was  considered  insufficient ; 
because,  in  regard  to  the  departure  and  concealment,  it  referred 
indefinitely  to  the  past,  making  no  allusion  either  to  the  present 
or  future,  and  was  too  vague  to  form  the  legal  foundation  of  an 
attachment.'^  Under  a  statute  authorizing  attachment,  "  when 
any  person  shall  be  an  inhabitant  of  any  State,  territory,  or 
country,  without  the  limits  of  this  State,  so  that  he  cannot  be  per- 
sonally served  with  process,"  an  affidavit  was  held  bad,  which 

1  Mantz  r.  Hendley,  2  Hening  &  Munford,  308. 

2  Levy  V.  Millman,  7  Georgia,  167 ;  Brown  v.  McCluskey,  26  Ibid.  577. 
'  "Wallis  V.  Mui-phy,  2  Stewart,  15. 

*  Napper  i;.  Xoland,  9  Porter,  218. 

6  Croxall  i;.  Hutchings,  7  Halsted,  84. 

8  Millaudon  v.  Foucher,  8  Louisiana,  582. 

^  New  Orleans  v.  Garland,  1 1  Louisiana  Annual^  438. 

6  [81] 


§  108  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

averred  the  inhabitancy  in  another  State,  but  omitted  the  aver- 
ment a'S  to  the  impossibility  of  personal  service  of  process.^ 
Under  a  statute  authorizing  an  attachment,  where  the  debtor 
"  hath  removed  himself  out  of  the  county  privately,  so  that  the 
ordinary  process  of  law  cannot  be  served  on  him,"  an  aflfidavit 
alleging  the  removal,  but  omitting  the  word  "  privately  "  was  held 
bad.2  An  affidavit  that  the  defendant  "  is  about  to  abscond,"  was 
decided  not  to  comply  with  a  statute  authorizing  an  attachment 
where  the  debtor  "absconds  or  conceals  himself";  or  with  one 
using  the  terms  "  shall  be  absconding  or  concealing  himself,"  ^  or 
with  one  using  the  phrase  "  hath  absconded."  *  Where  attach- 
ment was  authorized  when  the  debtor  "  is  removing  out  of  the 
county  privately,"  an  affidavit  that  he  "  hath  removed  "  is  bad.^ 
Under  a  statute  using  the  words  "  is  privately  removing  out  of 
the  county,  or  absconds  and  conceals  himself,  so  that  the  ordinary 
process  of  law  cannot  be  served  upon  him,"  an  affidavit  that  the 
defendant  had  "  either  left  the  county  and  commonwealth,  or  so 
absconds  himself  that  the  ordinary  process  of  law  cannot  be  served 
upon  him,"  was  held  insufficient.^  An  affidavit  that  the  defendant 
"was  removing  out  of  the  county  privately,"  was  held  iysufficient, 
under  a  statute  using  the  words  "  is  removing  out  of  the  county 
privately,  or  absconds  or  conceals  himself,  so  that  the  ordinary 
process  of  law  cannot  be  served  upon  him."  ^  Where  the  statute 
required  the  affidavit  to  state  that  the  defendant  "  had  not  resided 
in  the  State  for  three  months  immediately  preceding  the  time  of 
making  application  for  the  attachment,"  and  the  affidavit  was, 
that  he  "  had  not  resided  there  for  three  months  immediately 
preceding  the  date  of  the  affidavit,"  and  the  affidavit  was  dated 
two  days  before  the  attachment  was  applied  for ;  it  was  held  insuf- 
ficient.^ In  a  proceeding  against  several  defendants  as  non-resi- 
dents, an  affidavit  stating  that  "  they  are  not  all  residents  "  of  the 
State  in  which  the  writ  is  sought,  is  indefinite  and  insufficient,  as 
clearly  implying  that  some  of  them  do  reside  there.^  Where  the 
statutory  ground  of  attachment  was,  that  the  defendant  "  is  not  a 

1  Thompson  v.  Chambers,  12  Smedes  &  Marshall,  488. 

2  M'Culloch  V.  Foster,  4  Ycrger,  162. 
8  Bennett  v.  Avant,  2  Sneed,  152. 

*  Lewis  V.  Butler,  Kentucky  Decisions  (Sneed),  290. 
5  Hopkins  v.  Suttles,  Hardin,  95,  note. 

s  Davis  V.  Edwards,  Hardin,  342.  ^  Drew  v.  Dequindre,  2  Donj^lass,  93. 

"!  Poage  V.  Poage,  3  Dana,  579.  ^  Powers  v.  Hurst,  3  Blackford,  229. 

[82] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACmrENT.  §111 

resident  of  or  residing  within  this  State,"  an  affidavit  that  he  "  is 
not  a  resident  of  this  State,  so  that  the  process  of  this  court  cannot 
be  served  upon  him,"  was  held  insufficient.^  Under  the  same 
statute,  an  affidavit  that  the  defendant  "  is  not  a  resident  of  this 
State,"  was  held  bad.^  Where  the  statute  authorized  an  attach- 
ment where  "  a  debtor  is  on  the  eve  of  leaving  the  State  forever," 
an  affidavit  that  the  affiant  "  verily  believes  and  has  just  grounds 
to  apprehend  that  the  defendant  may  depart  from  the  State  per- 
manently," is  insufficient,^ 

§  109.  The  fact  that  two  affidavits  of  the  same  import  appear 
in  the  record,  will  not  invalidate  the  attachment.  The  second 
will  be  disregarded.* 

§  110.  In  an  action  against  two  joint  debtors,  if  the  affidavit  be 
insufficient  as  to  one  of  them,  it  will  not  authorize  an  attachment 
against  the  property  of  both.^ 

§  111.  It  is  proper  that  an  affidavit  should  be  made  as  near  as 
practicable  at  the  time  of  the  institution  of  the  suit ;  but  it  is  be- 
lieved to  be  a  general  practice  to  allow  attachments  to  issue  on 
affidavits  made  some  time  before  the  issue  of  the  writ.  In  South 
Carolina,  where  the  law  required  the  affidavit  to  be  made  at  the 
time  of  filing  the  declaration,  it  was  decided,  that  so  constant  and 
uniform  had  been  the  practice  to  the  contrary,  that  it  ought  not  to 
be  contested  or  varied.  "  It  will  be  seen  at  once,"  said  the  court, 
*'  that  unless  a  party  is  present  to  make  tlie  affidavit  at  the  filing 
of  the  declaration,  a  foreigner,  or  even  one  of  our  own  country- 
men, who  should  accidentally  be  absent  from  the  State,  might  be 
deprived  of  the  advantage  accruing  under  the  attachment  act."  ^ 
And  in  Missouri  it  was  held,  that  the  lapse  of  nine  or  ten  days  be- 
tween the  date  of  the  affidavit  and  the  issue  of  the  writ,  would  not 
sustain  a  motion  to  quash.  The  affidavit  alleged  the  non-residence 
of  the  defendant,  and  it  was  urged  that  the  fact,  though  true  when 
sworn  to,  may  have  ceased  to  be  so  when  the  writ  was  obtained ; 

1  Lane  v.  Fellows,  1  Missouri,  251. 

2  Alexander  v.  Haden,  2  Missouri,  187. 

8  Reding  v.  Ridge,  41  Louisiana  Annual,  36. 
*  "Wharton  v.  Conger,  9  Smedes  &  Marshall,  510. 
6  Hamilton  i'.  Knight,  1  Blackford,  25. 

6  Creagh  i;.  Delane,  1  Xott  &  M'Cord,  189;  "Wright  v.  Ragland,  18  Texas,  289. 

[83] 


§  112  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

but  the  court  said,  that  if  such  were  the  case,  it  should  be  taken 
advantage  of  by  plea  in  abatement,  which  would  put  in  issue  the 
truth  of  the  affidavit  at  the  time  the  writ  issued,^  In  Michiy;an, 
however,  under  an  act  requiring  the  affidavit  to  state  that  the  de- 
fendant "  does  not  reside  in  this  State,  and  has  not  resided  therein 
for  three  months  immediately  preceding  the  time  of  making  applica- 
tion  for  such  attachment,''^  it  was  lield,  that  an  affidavit  made  the 
day  before  the  attachment  issued,  was  bad  ;  ^  and  so  of  an  affidavit 
under  an  act  which  used  in  that  connection  the  words  "  immedi- 
ately preceding  tlie  time  of  making  such  affidavit.''''  ^  Under  each 
act  it  was  decided  that  the  affidavit  must  be  made  on  the  same 
day  that  the  attachment  issues. 

§  112.  The  mode  of  defeating  an  attachment  on  account  of 
defects  in,  or  the  omission  to  make,  an  affidavit,  varies  in  different 
States.  The  most  usual  mode  is  by  motion  to  quash  or  dissolve 
the  attachment.  This  motion  is  in  the  nature  of  a  plea  in  abate- 
ment, and,  if  successful,  its  eftcct  is  the  same.'*  In  Alabama  and 
North  Carolina,  however,  the  only  way  to  reach  such  defects  is  by 
plea  in  abatement.^  Whichever  mode  is  adopted,  it  sliould  be  re- 
sorted to  in  limine;  for  after  appearance  by  the  defendant  and 
plea  to  the  action,  it  is  too  late  to  take  advantage  of  defects  in 
the  preliminary  proceedings  ;  they  will  be  considered  as  waived, 
unless  peculiar  statutory  provisions  direct  otherwise.^  But  it  is 
held,  tliat  a  defendant's  appearance,  by  attorney,  to  move  for  the 
dismissal  of  an  attachment,  and  to  except  to  the  jurisdiction  of 
the  court,  is  not  such  an  appearance  as  may  be  construed  into  a 
submission  to  the  jurisdiction.^  But  if  a  defendant  appear,  and 
deny  the  allegations  of  a  defective  affidavit,  and  treat  it  as  if  it 
were  legal  in  its  terms,  and  go  into  a  trial  of  the  issue  made  by 
himself  as  to  the  ground  of  the  attachment,  and  thereby  get  all  the 

1  Graham  v.  Bradbury,  7  Missouri,  281. 

2  Drew  V.  Dcquindre,  2  Douglass,  93. 

8  Wilson  I'.  Arnold,  5  Michij^an,  98 ;  Fessenden  v.  Hill,  6  Ibid.  242. 

*  Watson  V.  McAllister,  7  Martin,  368. 

^  Lowry  v.  Stowe,  7  Porter,  483 ;  .Jones  v.  Pope,  6  Alabama,  154 ;  Burt  v.  Parish,  9 
Ibid.  211 ;  Kirkman  v.  Patton,  19  Ibid.  32;  Garmon  v.  Barringer,  2  Devereux  &  Bat- 
tle, 502. 

6  Garmon  v.  Barringer,  2  Devereux  &  Battle,  502;  Stoney  v.  McNeill,  Harper,  156; 
Watson  V.  McAllister,  7  Martin,  368 ;  Enders  v.  Steamer  Henry  Clay,  8  Robinson 
(La.),  30;  Symons  v.  Northern,  4  Jones,  241 ;  Burt  v.  Parish,  9  Alabama,  211. 

'  Bonner  v.  Brown,  10  Louisiana  Annual,  334  ;  Johnson  v.  Buell,  26  Illinois,  66.  Sea 
contra,  Whiting  v.  Budd,  5  Missouri,  443;  Evans  v.  Iving,  7  Ibid.  411. 
[84] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  113 

benefit  'that  he  could  have  had  if  the  affidavit  had  been  in  strict 
conformity  to  law,  and  the  result  of  the  trial  be  adverse  to  him ; 
he  cannot  obtain  a  reversal  of  the  judgment  because  of  the  defect 
in  the  affidavit.^ 

§  113.  In  the  attachment  laws  of  several  States,  provisions  are 
found  authorizing  defective  affida%'its  to  be  amended,  and,  in  some 
instances,  prohibiting  the  quashing  or  setting  aside  of  an  attach- 
ment on  account  of  such  defects,  if  a  sufficient  affidavit  be  filed. 
Similar  provisions  exist  likewise  as  to  attachment  bonds.  In 
regard  to  the  latter  it  has  been  held,  that  a  defect  in  tlie  bond  is 
not  a  sufficient  cause  for  quashing  the  proceedings,  unless  an  op- 
portunity be  given  the  plaintiff  to  execute  a  perfect  bond,  and  he 
fail  to  do  S0.2  The  same  rule  is  applied  in  the  case  of  a  defective 
affidavit.^  The  proper  order  to  be  made  by  the  court  in  such  cases 
is,  that  the  attachment  be  quashed,  unless  the  plaintiff,  within  a 
designated  time,  file  a  sufficient  affidavit.  A  judgment  dissolving 
the  attachment  and  givmg  leave  to  amend,  is  inconsistent,  and 
may  be  reversed.*  Wherever  an  amended  affidavit  is  filed,  its 
allegations  should  relate  to  the  time  of  the  suing  out  of  the  at- 
tachment ;  for  if  they  refer  only  to  the  existence  of  the  ground 
for  attachment  at  the  time  they  are  made,  they  will  not  sustain 
the  attachment.^ 

If  an  affidavit  be  so  defective  as  that  the  writ  issued  upon  it  is 
void,  no  amendment  will  be  of  any  force  to  give  validity  to  the 
writ,  except  as  between  the  parties  to  the  suit ;  it  cannot  cut  off 
intermediate  rights  acquired  by  third  persons  in  the  property  at- 
tached.^ 

1  Ryan  v.  Bean,  2  Metcalfe  (Ky.),  137. 

2  Planters  &  Merchants'  Bank  v.  Andrews,  8  Porter,  404 ;  Lowe  v.  Derrick,  9  Porter, 
415 ;  Tevis  v.  Hughes,  10  Missouri,  380;  Scott  v.  Macy,  3  Alabama,  250. 

2  Bunn  V.  Pritchard,  6  Iowa,  56. 

*  Graves  v.  Cole,  1  G.  Greene,  405. 

6  Crouch  V.  Crouch,  9  Iowa,  269;  "Wadsworth  v.  Cheeny.lO  Ibid.  257. 

*  Whitney  v.  Brunette,  15  Wisconsin,  61. 

[851 


§  116  ATTACHMENT  BONDS.  [CHAP.  VL 


CHAPTER    VI. 

ATTACHMENT   BONDS. 

§  114.  In  many  of  the  States  it  is  required,  that  a  plaintiff,  be- 
fore obtaining  an  attachment,  shall  execute  a  bond,  with  security, 
for  the  indemnification  of  the  defendant  against  damage  by  reason 
of  the  attachment.  The  terms  of  such  instruments  vary,  but  that 
is  their  usual  scope.  Sometimes,  in  order  to  protect  defendants 
who  do  not  appear  to  the  action,  a  clause  is  added  in  the  condi- 
tion, that  the  plaintiff  shall  refund  to  the  defendant  any  money 
recovered  by  means  of  the  attachment,  which  was  not  justly  due 
to  him.  This  is  merely  giving,  at  the  institution  of  the  suit,  what, 
by  the  custom  of  London,  the  plaintiff  is  required  to  give  at  its 
termination,  in  order  to  obtain  execution  against  the  garnishee. 

§  115.  Where  the  statute  requires  a  bond  to  be  given  before 
the  attachment  issues,  a  failure  to  give  it  is  fatal  to  the  suit, 
unless  the  law  authorize  the  defect  to  be  cured  ;  and  the  omis- 
sion may  be  taken  advantage  of  by  the  defendant,  either  upon  a 
motion  to  dismiss,  or  in  abatement.^  Great  strictness  has  been 
manifested  on  this  point,  and  without  doubt  very  properly ;  for  if 
the  officer  "  could  dispense  with  the  requisites  of  the  law,  for  a 
part  of  a  day,  why  might  he  not  for  a  whole  day,  or  many  days, 
and  at  last  the  whole  be  excused  by  the  answer  that  the  defendant 
was  still  secured,  and  might  make  the  plaintiff  responsible,  who 
might  be  amply  able  to  discharge  the  damages  recovered,  although 
no  bond  was  executed  at  all  ?  "  ^ 

§  116.  In  Mississippi,  the  statute  declares  that  an  attachment 
issued  without  bond  is  void,  and  shall  be  dismissed ;  and  the 
courts  of  that  State  have  carried  out  the  law  rigidly ;  holding 
that  the  attachment  is  absolutely  void ;  ^  that  the  want  of  a  suf- 

1  Bank  of  Alabama  v.  Fitzpatrick,  4  Humphreys,  31 1  ;  Didier  v.  Galloway,  3  Ar- 
kansas, 501 ;  Davis  v.  Marshall,  14  Barbour,  96 ;  Benedict  v.  Bray,  2  California,  251 ; 
Kellogg  V.  Miller,  6  Arkansas,  468  ;  Lewis  v.  Butler,  Kentucky  Decisions  (Sneed),  290 ; 
Stevenson  v.  Bobbins,  5  Missouri,  18. 

2  Hucheson  v.  Ross,  2  A.  K.  Marshall,  349. 
8  Ford  V.  Hurd,  4  Smedes  &  Marshall,  683. 

[86] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  119 

ficient  bond  cannot  be  cured  by  filing  a  proper  one  after  the  suit 
is  brought ;  ^  that  the  absence  of  a  bond  is  not  remedied  by  the 
appearance  of  the  defendant  and  his  pleading  to  the  action  ;  ^  and 
that  a  judgment  against  a  garnishee  who  has  answered  under  an 
attachment  issued  without  bond  is  void,^  and  no  bar  to  a  subse- 
quent action  against  him  by  the  attachment  defendant  for  the 
same  debt.*  In  Kentucky,  where  the  bond  was  required  to  be  in 
double  the  sum  to  be  attached,  and  the  statute  declared  that  every 
attachment  issued  without  such  bond  being  taken  sliould  be  il- 
legal and  void,  the  strict  rule  was  applied,  in  cases  where  the  bond 
was  below  the  required  amount ;  and  the  attachment  was,  on  writ 
of  error  by  the  defendant,  declared  void.^  In  South  Carolina, 
however,  so  great  strictness  does  not  prevail.  There  the  statute 
declares  the  attachment  void  when  issued  without  bond  ;  but  the 
courts  have  construed  the  law  to  mean  voidable  only,  and  held 
that  the  attachment  is  good  until  declared  void  on  pleading.^ 

§  117.  But  though  an  attachment  sued  out  without  sufficient 
bond  having  been  taken,  should  be  considered  absolutely  void  as 
to  the  defendant,  yet  it  will,  unless  the  defect  appear  on  the  face 
of  the  writ,  justify  an  officer  in  making  a  levy  under  it.  It  was  so 
held  hi  Kentucky,  where,  as  stated  in  the  last  section,  the  court, 
on  writ  of  error  by  the  defendant,  held  the  attachment  void  in 
such  case.'^  This  doctrine  is  certainly  correct,  as  thus  applied  , 
but  would  not  be,  if  the  law  required  the  writ  to  state  that  a  bond 
was  given,  and  it  did  not  state  it. 

§  118.  But  though  an  officer  executing  the  writ  is,  under  such 
circumstances,  not  liable  as  a  trespasser,  yet  the  party  who  causes 
the  writ  to  issue  without  giving  bond,  and  the  officer  who  issues 
it,  are  both  so  liable  to  the  defendant.^ 

§  119.  As  in  the  case  of  the  affidavit,  the  bond  must  appear  in 
the  record  of  the  action  ;  ^   but,  unless  required  by  statute,  the 

1  Houston  1-.  Belcher,  12  Smcdes  &  Marshall,  514. 

2  Tyson  v.  Hamer,  2  Howard  (Mi.),  669. 

8  Ford  V.  Woodward,  2  Smedes  &  Marshall,  260. 
*  Ford  17.  Kurd,  4  Smedes  &  Marshall,  683. 

6  Martin  v.  Thompson,  3  Bibb,  252 ;  Samuel  v.  Brite,  3  A.  K.  Marshall,  317. 
6  Camberford  v.  Hall,  3  M'Cord,  345. 

'  Banta  v.  Reynolds,  3  B.  Monroe,  80 ;  Owens  v.  Starr,  2  Littcll,  230. 
8  Barkeloo  v.  Randall.  4  Blackford,  476.     ^  Cousins  v.  Brashear,  1  Blackford,  85. 

[87] 


§  121  a  ATTACHMENT  BONDS.  [cHAP.  VL 

omission  to  recite  in  the  writ  that  a  bond  was  given,  will  not  viti- 
ate the  attachment.^ 

§  120.  When  it  is  required  that  a  bond  shall  be  approved  by  a 
clerk  of  court,  it  is  not  necessary  for  him  to  indorse  his  approval 
thereon :  that  is  but  evidence  of  the  fact,  which  may  be  otlierwise 
proved.2  If  he  receives  and  files  the  bond,  he  is  estopped  from 
afterwards  denying  that  he  approved  it.^  And  his  approval  is  but 
priind  facie  evidence  of  the  sufficiency  of  the  sureties,  subject  to 
be  overthrown.* 

§  121.  The  bond  must  be  actuaUy  executed  and  delivered  before 
the  writ  issues.  It  will  not  answer  for  the  party  to  prepare  what 
may  be  made  into  the  required  instrument,  and  leave  it  incom- 
plete. Therefore,  where  it  appeared  that  the  plaintiff,  before  the 
writ  issued,  filed  witli  the  clerk  a  half  sheet  of  paper,  upon  which 
he  and  another  person  had  signed  their  names,  but  that  the  paper 
was  otherwise  blank,  it  was  decided  that,  as  the  ceremonies  neces- 
sary to  a  bond  consist  of  writing  (on  paper  or  parchment),  sealing, 
and  delivery,  none  of  which  existed  in  this  case,  there  was  no  bond; 
and  the  writ  was  quashed.^ 

§  121  a.  When  a  bond  is  executed  by  the  plaintiff,  and  delivered 
to  the  officer  who  is  to  issue  the  attachment,  no  agreement  between 
them  as  to  any  condition  subsequent,  upon  which  the  bond  was  to 
become  unavailable  in  the  case,  can  have  any  effect  upon  the  right 
of  the  attachment  defendant  to  recover  thereon.  Thus,  where  the 
plaintiff,  at  the  time  of  obtaining  an  attachment,  executed  a  bond 
and  left  it  with  the  officer,  with  the  condition  and  agreement  that 
the  officer  might  use  it  as  the  basis  of  an  attachment  in  case  the 
plaintiff  failed  to  produce  a  decision  of  the  Supreme  Court  that 
such  bond  was  unnecessary;  and  that  it  was  not  to  be  so  used 
unless  the  plaintiff  so  failed ;  and  within  twenty-four  hours  there- 
after the  officer  issued  the  attachment ;  and  afterwards  the  plain- 
tiff produced  to  him  a  decision  of  the  Supreme  Court  to  the  effect 
stipulated  ;  whereupon  the  officer  delivered  the  bond  up  to  the 

1  Hays  V.  Gorby,  3  Iowa,  203  ;  Ellsworth  v.  Moore,  5  Ibid.  486. 

2  Mandel  v.  Peat,  18  Arkansas,  236  ;  Griffith  v.  Robinson,  19  Texas,  219. 
8  Pearson  v.  Gayle,  1 1  Alabama,  278. 

4  Blaney  v.  Findley,  2  Blackford,  338. 

6  Boyd  V.  Boyd,  2  Nott  &  M'Cord,  125;  Perminter  v.  M'Daniel,  1  Hill  (S.  C),  26, 
[88] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  123 

plaintifif,  who  destroyed  it ;  and  afterwards  the  attachment  de- 
fendant sued  upon  it ;  it  was  held,  that  the  defendant's  right  of 
action  upt)n  it  was  not  affected  by  the  agreement  between  the 
plaintiff  and  the  officer.^ 

§  122.  If  the  bond  be  actually  executed,  according  to  the  statu- 
tory requirement,  but  before  it  is  returned  into  court,  be  acciden- 
tally destroyed,  the  failure  to  return  it  will  not  be  a  cause  for 
quashing  the  attachment,  though  the  statute  require  it  to  be  re- 
turned.2  Nor  will  the  failure  of  the  officer  taking  the  bond,  to 
return  it  into  court,  authorize  the  attachment  to  be  dissolved,  if 
no  blame  be  chargeable  to  the  plaintiff.^ 

§  123.  If  it  appear  from  the  recitals  in  the  bond,  that  it  was 
not  executed  until  after  the  writ  issued,  it  will  be  fatal  to  the  at- 
tachment, where  its  execution,  as  is  usually  the  case,  is  a  condition 
precedent  to  the  issue  of  the  writ.  Therefore,  where  the  attach- 
ment and  bond  bore  date  on  the  same  day,  and  the  bond  recited 
that  on  that  day  the  plaintiff  had  first  issued  or  obtained  the  at- 
tachment, the  attachment  was  quashed.*  But  where,  under  sim 
ilar  circumstances,  and  similar  statutory  requirements,  the  bond 
recited  that  the  plaintiffs  "  have  this  day  sued  out  an  attachment," 
it  was  held,  on  a  motion  to  quash,  that  though  the  issue  of  the 
writ  before  the  giving  of  the  bond  would  be  fatal,  yef  that  the 
recital  of  the  bond  was  not  evidence  of  the  fact.  "  The  recital," 
Bay  the  court,  "  was  evidently  intended  to  identify  the  case  in 
which  the  bond  was  given,  and  not  to  indicate  its  order,  in  point 
of  time,  in  the  proceedings.  Nothing  more  was  meant,  or  is 
necessarily  to  be  inferred  from  it,  than  that  it  was  intended  as  the 
bond  required  to  be  given  in  the  case,  wherein  the  plaintiffs  had 
instituted  proceedings,  by  filing  their  petition  and  making  affidavit 
for  the  purpose  of  suing  out  an  attachment ;  not  that  the  writ  had 
actually  been  issued  by  the  clerk  already.  That  is  not  a  necessary, 
nor,  when  it  is  considered  that  it  would  have  involved  the  viola- 
tion of  duty  by  the  clerk,  is  it  a  probable  conclusion."  ^     And  so, 

1  Bennett  t;.' Brown,  20  New  York,  99. 

2  Wheeler  v.  Slavens,  13  Smedes  &  Marshall,  623. 

8  Bank  of  Augusta  v.  Conrcy,  28  Mississippi,  667 ;  State  Bank  v.  Hinton,  1  Dev- 
ereux,  397. 
*  Hucheson  v.  Ross,  2  A.  K.  Marshall,  349 ;  Root  v.  Monroe,  5  Blac  kford,  594. 
6  Wright  V.  Ragland,  18  Texas,  289. 

[89] 


§  125  ATTACHMENT  BONDS.  [cHAP.  VI. 

where  the  condition  of  the  bond  required  the  plaintiff  to  prosecute 
to  effect  an  attachment  "  granted,"  and  the  bond  and  tlie  attach- 
ment were  of  the  same  date,  the  court  considered  it  unnecessary 
to  set  forth  in  the  bond  that  it  was  taken  before  granting  the  writ, 
and  that  it  would  be  presumed  the  law  had  been  comi)lied  with. 
"  The  object  of  the  law,"  said  the  court,  "  was  to  prevent  an  at- 
tachment from  being  issued  without  giving  the  defendant  the 
security  afforded  by  the  bond,  and  the  least  possible  division  of 
time  is  a  sufficient  priority.  If  the  law  has  been  substantially 
fulfilled,  the  court  will  not  permit  the  oliject  to  be  defeated,  be- 
cause the  phraseology  of  some  part  of  the  proceedings  may  not 
be  critically  correct."  ^ 

But  though  the  recital  of  a  bond  should  indicate  that  the  at- 
tachment had  been  previously  obtained,  it  will  not  be  sufficient  to 
quash  the  writ,  if  it  appear  on  inspection  of  the  record  that  the 
writ  was  in  fact  subsequently  issued.  This,  however,  could  not 
be  shown  by  parol  evidence.^ 

§  124.  The  suf!iciency  of  the  bond  to  sustain  the  attachment 
may  be  questioned,  either  as  to  its  terms,  parties,  or  amount.  If 
there  be  a  bond,  but  not  such  as  the  law  requires,  it  will  be  the 
same  as  if  there  were  no  bond,  unless  an  amendment  of  it  be  au- 
thorized by  statute .3  A  substantial  compliance  with  the  statute, 
however,  seems  to  be  in  general  suflficient.^  But  whatever  objec- 
tions the  defendant  may  have  to  the  bond  should  be  presented 
before  he  pleads  to  the  merits  ;  unless  the  law  authorize  a  new 
bond  to  be  required,  where  the  surety  becomes  insolvent  after  its 
execution.  In  that  case,  the  fact  may  be  shown  after  pleading  to 
the  merits.^ 

§  125.  As  to  the  Terms  of  the  Bond.  Where  the  statute  requires 
a  bond  in  a  stated  penalty,  with  a  specified  condition,  its  require- 
ment is  not  met  by  the  execution  of  a  covenant,  by  which  the 
plaintiff  and  his  security  promise  to  pay  to  the  defendant  the 
amount  of  the  penalty  stated  in  the  statute,  or  all  damages  and 

1  McKenzie  v.  Buchan,  1  Nott  &  M'Cord,  205. 

2  Summers  v.  Glancey,  3  Blackford,  361 ;  Reed  v.  Bank  of  Kentucky,  5  Ibid.  227. 

8  Bank  of  Alabama  ».  Fitzpatrick,  4  Humphreys,  311  ;   Houston  v.  Belcher,  12 
Smedes  &  Marshall,  514. 
*  O'Neal  i\  Owens,  1  Haywood  (N.  C),  362 ;  Leach  v.  Thomas,  2  Nott  &  M'Cord,  1 10 
6  Ealer  v.  McAllister,  14  Louisiana  Annual,  821. 
[90] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  129 

costs  he  may  sustain  by  reason  of  the  issue  of  the  attachment.^ 
And  if  such  an  instrument  be  declared  on  as  a  bond  with  a  con- 
dition, and  a  breach  thereof  be  assigned,  when  it  is  produced  on. 
the  trial  the  variance  will  be  fatal.^ 

§  126.  "When  a  statute  in  one  clause  provides  what  shall  be  the 
condition  of  the  bond,  and  in  another,  sets  forth  the  form  of  the 
condition,  the  proper  course  is  to  follow  the  form,  without  regard 
to  whether  its  terms  coincide  with  the  language  of  the  statute 
elsewhere.^  Indeed,  it  has  been  decided,  that  if  the  bond  follow 
the  language  of  the  statute  instead  of  the  form  prescribed,  when 
they  are  variant  from  each  other,  it  will  be  void.* 

§  127.  To  state  in  the  bond  that  the  suit  is  brought  in  a  court 
other  than  that  in  which  it  is  brought,  is  a  fatal  error ;  ^  as  is  like- 
wise an  omission  to  name  the  court ;  ®  but  a  misrecital  in  a  bond 
of  the  term  of  the  court  to  which  the  attachment  is  returnable, 
does  not  vitiate  it :  the  affidavit  and  the  writ  control  the  terms  of 
the  instrument.'^  But  where  the  bond  recited  the  time  when  the 
court  was  to  be  held,  as  "  the  first  Monday  in  June,"  without  des- 
ignating it  as  the  next  county  court,  it  was  considered  defective,  but 
amendable.^  And  so,  where  the  bond  was  dated  on  the  4th  day 
of  January,  1836,  and  recited  the  attachment  as  returnable  "  to 
the  county  court  to  be  held  on  the  third  Monday  of  January,  in- 
stant," while  the  attachment  bore  date  the  -Ith  of  January,  1838, 
the  bond  was  held  to  be  defective.^ 

§  128.  It  is  no  objection  to  a  bond  that  it  is  not  dated,  where  a 
date  is  not  required  by  statute  to  be  named  in  it.^'^ 

§  120.  An  insufficient  description  of  the  parties,  or  the  suit, 
will  vitiate   the   bond.     Thus,  where   the  obligors   acknowledge 

1  Hoinan  i*.  Brinckerhoff,  1  Denio,  184. 

2  Rochefeller  i-.  Hoysradt,  2  Hill  (X.  Y.),  616. 

8  Love  V.  Fairfield,  10  Illinois  (5  Oilman),  303;  Lucky  v.  SDller,  8  Yerger,  90. 
*  Mclutyre  v.  White,  5  Howard  (Mi.),  298;  Amos  v.  Allnutt,  2  Smedes  &  Marshall, 
215;  Proskey  v.  West,  8  Ibid.  711. 

^  Bonner  v.  Brown,  10  Louisiana  Annual,  334. 
8  Lawrence  u.  Yeatman,  3  Illinois  (2  Scammon),  15, 
■J  Houston  V.  Belcher,  12  Smedes  &  Marshall,  514. 
8  P.  &  M.  Bank  v.  Andrews,  8  Porter,  404. 

«  Lcwrv  V  Stowe  7  Porter,  483         i'^  Plumpton  v.  Cook,  2  A.  K.  Marshall,  450. 

[91] 


§  131  ATTACHilENT  BONDS.  [CHAP.  M. 

themselves  bound,  "  conditioned  that  A.  B.  plaintiff  in  attachment 

against defendant  will  prosecute,"  &c.,  it  was  held,  that  tho 

attachment  could  not  be  sustained.^ 

§  130.  "While  any  substantial  departure  from  a  prescribed  form, 
or  omission  from  the  instrument  of  terms  required  by  the  statute, 
will  be  fatal  to  the  action,  unless  remediable  by  amendment,  the 
addition  of  terms  not  required  will  not  have  that  cfTect.  Thus, 
where  a  bond  contained  all  the  requisite  conditions,  with  the  fur- 
ther one,  "  that  the  plaintiff  shall  prosecute  his  attachment  with 
effect  at  tho  court  to  which  it  is  returnable";  it  was  held,  that 
this  did  not  authorize  the  attachment  to  be  dismissed.^  So,  where, 
by  statute,  the  bond  was  required  to  be  made  to  the  State  of  Ar- 
kansas, and  a  bond  was  made  to  that  State,  "  for  the  use  and 
benefit  of  the  defendant,"  it  was  held,  that  tlie  words  added  were 
merely  surplusage,  and  did  not  affect  the  validity  of  the  bond.^ 

§  131.  As  to  the  Parties  to  the  Bond.  If  it  be  required  tliat  the 
bond  be  given  by  the  plaintiff,  and  no  provision  exist  for  its  being 
given  by  any  other  person,  a  bond  executed  by  a  stranger  to  the 
suit  will  be  invalid.  This  was  so  held,  where  the  statute  declared 
that  no  writ  of  attachment  should  issue  "  before  the  plaintiff  has 
given  bond";*  and  also  under  a  statute  requiring  bond  to  be 
taken  of  "the  party  for  whom  the  attachment  issued."^  This 
rule,  however,  is  to  be  applied  within  its  reason,  and  not  arbitra- 
rily and  literally,  without  regard  to  circumstances.  Therefore, 
where  bond  was  required  to  be  taken  from  "  the  party  plaintiff," 
it  was  held,  that  a  bond  executed  by  one  to  whose  use  the  suit  was 
brought,  was  within  the  meaning  of  the  statute.^  And  so,  under 
a  statute  which  provided  that  "  the  creditor  shall  likewise  file  with 
the  clerk  a  bond  to  the  defendant  with  sufiicient  security,"  a  bond 
was  signed  in  the  plaintiff's  name,  by  an  agent  having  no  authority 
therefor,  and  by  competent  sureties  ;  and  it  was  held  sufficient, 
though  not  the  act  of  the  plaintiff,  because  the  reason  of  the  law 
was  satisfied  by  the  sufficiency  of  the  security.'^ 

1  Schrimpf  v.  McArdle,  13  Texas,  368.  ^  Kahn  v.  Herman,  3  Georgia,  266. 

2  Steamboat  Napoleon  v.  Etter,  6  Arkansas,  103. 
*  Myers  v.  Lewis,  1  McMuUan,  54. 

6  Mantz  V.  Hendley,  2  Hening  &  Munford,  308. 

6  Grand  Gulf  R.  R.  &  B.  Co.  v.  Conger,  9  Smedes  &  Marshall,  505 ;  Murray  v. 
Cone,  8  Porter,  250. 
'  Taylor  v.  Ricards,  9  Arkansas,  378. 
[92] 


CHAP.  VI. J  ATTACrorENT   BONDS.  §  132 

Under  a  statute  requiring  a  bond  to  be  taken  of  "  the  party  for 
whom  the  attachment  issued,"  it  was  considered,  in  a  suit  by  a 
mercantile  firm,  that  a  bond  entered  into  by  one  of  the  firm  in 
his  own  name,  was  sufficient,  where  it  apjDeared  in  the  instrument 
that  he  executed  it  as  one  of  the  firm,  and  sufficiently  described 
the  suit  as  being  by,  and  for  the  benefit  of,  the  firm.^  But  where 
the  bond  recited  that  the  individual  partner  had  sued  out  the 
attachment,  and  was  conditioned  that  if  he  should  be  cast  in  the 
suit,  he  should  pay  all  costs  and  damages  recovered  against  him 
for  suing  out  the  writ,  it  was  decided  that  the  bond  was  not  in 
compliance  with  the  statute,  and  the  attachment  was  therefore 
quashed.^ 

So,  where  an  attorney  at  law,  under  the  same  statute,  executed 
the  bond  in  his  own  name,  conditioned  that  he  should  pay  and  sat- 
isfy all  costs  which  should  be  awarded  to  the  defendant,  in  case  he 
should  be  cast,  &c. ;  it  was  held,  that  the  bond  was  bad,  and  the 
attachment  was  set  aside. ^ 

§  132.  Though  the  plaintiff  is  usually  required  to  execute  tlie 
bond,  yet  as  that  might  often  be  impracticable,  it  is  generally  pro- 
vided that  it  may  be  done  by  his  agent,  attorney,  or  other  person. 
In  such  case  the  word  attorney  in  the  statute  will  be  considered  to 
include  an  attorney  at  law,  as  well  as  an  attorney  in  fact ;  *  and  it 
is  held,  that  one  acting  in  the  former  capacity,  in  the  collection  of 
a  debt  in  a  State  where  he  is  authorized  to  practise  law,  may,  as 
an  incident  of  his  employment,  execute  the  bond  in  the  name  of 
his  client.  In  the  language  of  tlie  Supreme  Court  of  Louisiana, — 
"  The  signing  of  the  bond  is  an  act  of  administration  alone,  indis- 
pensable to  secure  the  rights  of  the  client,  and  is  fully  conferred 
by  the  mandate  in  general  terms.  The  mandate  is  to  collect  his 
debt  by  process  of  law.  If  no  agent  or  attorney  in  fact  is  consti- 
tuted, the  attorney  at  law  is  the  mandatary  for  this  purpose.  Tli,e 
signing  of  the  attachment  bond  is  a  necessary  incident  to  the  col- 
lection of  the  debt,  and  is  embraced  hi  the  general  power  to  make 
the  collection."  ^     But  the  same  court  refused  to  extend  this  doc- 

1  Kyle  V.  Connelly,  3  Leigh,  719 ;  Wallis  v.  "Wallace,  6  Howard  (Mi.),  254. 

2  Jones  V.  Anderson,  7  Leigh,  308.  " 

8  yi&nU  V.  Hendley,  2  Hening  &  Munford,  30S. 
*  Trowbridge  v.  Weir,  6  Louisiana  Annual,  706. 
6  Wetmore  v.  Baffin,  5  Louisiana  Annual,  496. 

[93] 


§  104  ATTACHMENT   BONDS.  [CIIAP.  VI. 

trine  to  the  case  of  an  attorney  at  law  from  another  state,  who  was 
not  licensed  to  practise  in  the  courts  of  Louisiana.^ 

Under  statutes  of  similar  import,  it  is  held,  that  a  bond  signed 
by  one,  as  principal,  styling  himself  agent  of  the  plaintiff,  is  a 
compliance  with  the  statute;^  and  this  view  was  taken  also  in  cases 
where  he  did  not  so  style  himself,  but  signed  the  bond  simply  in  his 
personal  capacity.* 

§  133.  "Where  the  bond  purports  to  be  the  act  of  the  plaintiff, 
by  an  attorney  in  fact,  the  court  will  not  hold  the  bond  to  be  a 
nullity  because  no  power  of  attorney  under  seal  is  produced ;  *  but 
the  authority  of  the  attorney  will  be  presumed,  on  the  hearing  of 
a  motion  to  quash  the  writ  on  account  of  the  insufficiency  of  the 
bond.  If  it  be  intended  to  question  the  authority,  it  must  bo  done 
by  plea  to  that  effect;^  for  the  agent's  authority  is  a  matter  of 
evidence  aliunJe,  and  forms  no  part  of  the  bond ;  and  on  a  motion 
to  quash  or  dismiss,  the  court  will  not  inquire  into  the  fact  of 
agency,  but  will  presume  it.^  The  utmost  extent  to  which  the 
court  would  go  in  such  a  case,  would  be  to  rule  the  party  to  pro- 
duce, within  a  reasonable  time,  the  power  of  attorney  under  which 
he  acted.^ 

In  cases  of  this  description,  it  is  held,  that  showing  the  agent  to 
have  had  no  authority  to  execute  the  bond,  is  no  ground,  of  itself, 
for  abating  the  action  ;  but  that,  shown  in  connection  with  the 
further  fact,  that  the  agent  had  no  authority  for  instituting  the 
suit,  and  that  the  suit  is  not  prosecuted  with  the  authority  or  con- 
sent of  the  plaintiff,  it  would  be.^ 

§  134.  "Whether  a  subsequent  ratification  by  the  plaintiff,  of  an 
unauthorized  act  of  a  party  in  signing  his  name  to  the  bond,  will 
remedy  the  defect,  has  been  differently  decided.     In  Louisiana,  it 

.  1  Wetmore  r.  Daffin,  5  Louisiana  Annual,  496. 

2  Dillon  V.  Watkins,  2  Speers,  445;  Walbiidge  v.  Spalding,  1  Douglass,  451. 

8  Frost  V.  Cook,  7  Howard  (:Mi.),  357  ;  Page  v.  Ford,  2  Smedes  &  Marshall,  266 ; 
Clanton  v.  Laird,  12  Ibid.  568. 

*  Wood  V.  Squires,  28  Slissouri,  528. 

5  Alford  V.  Johnson,  9  Porter,  320 ;  Messner  v.  Hutchins,  17  Texas,  597  ;  Wright  v. 
Smith,  19  Ibid.  297. 

*"  Lindner  r.  Aaron,  5  Howard  (Mi.),  58^ ;  Spear  v.  King,  6  Smedes  &  Marshall,  276 ; 
Jackson  v.  Stanley,  2  Alabama,  326 ;  Goddard  v.  Cunningham,  6  Iowa,  400 ;  Wright 
V.  Smith,  19  Texas,  297  ;  Messner  v.  Lewis,  20  Ibid.  221. 

"•  Lindner  v.  Aaron,  5  Howard  (Mi.),  581. 

8  Dove  V.  Martin,  23  Mississippi,  588. 

r94i 


CIL\P.  \1.]  ATTACHJIENT   BONDS.  §  135 

is  held  in  the  negative.^  But  in  the  case  from  Mississippi,  cited 
in  the  last  section,^  it  will  be  observed,  that,  to  defeat  the  action 
on  account  of  want  of  authority  in  the  agent,  it  must  be  shown, 
likewise,  that  he  had  no  authority  for  instituting  the  suit,  and  that 
the  suit  is  not  prosecuted  with  the  authority  or  consent  of  the 
plaintiff.  Afterwards,  in  the  same  State,  it  was  expressly  decided, 
that  if  the  plaintiff  appear  and  prosecute  the  action,  it  will  be  con- 
sidered a  recoguitiun  of  tlie  agent's  authority,  so  as  to  sustain  the 
suit.''  And  in  Arkansas  it  was  decided,  that  a  subsequent  ratifi- 
cation by  the  plaintiff  will  sustain  the  bond,  and  that  a  plea  in 
abatement  alleging  want  of  authority  in  the  agent,  is  insufficient, 
unless  it  exclude  the  conclusion  that  a  ratification  has  taken  place.* 
And  in  Texas  it  was  held,  that  if  the  suit  should  be  abated  because 
the  agent  had  no  authority,  the  plaintiff  will,  nevertheless,  be  liable 
on  the  bond,  if  the  agent  acted  at  his  instance,  and  was  afterwards 
sustained  by  him  in  the  prosecution  of  the  suit.^ 

§  134  a.  If  the  statute  require  a  bond  to  be  given  "  with  sure- 
ties," but  witliout  designating  how  many,  will  a  bond  with  one 
surety  be  sufTiciont  ?  This  question  came  up  in  Iowa,  where  it 
was  held,  that  the  attachment  could  not  be  quashed  because  there 
was  only  one  surety  in  the  bond.  The  court  called  to  its  aid  a 
provision  of  the  Code  of  that  State,  that  "  words  importing  the 
singular  number  only  may  be  extended  to  several  persons  or 
things,  and  words  importing  the  plural  number  only  may  be  ap- 
plied to  one  person  or  thing  " ;  and  held,  that,  as  the  object  of  the 
law  is  to  afford  indemnity  to  the  defendant  for  the  wrongful  suing 
out  of  the  attachment ;  and  as  this  may  be,  and  often  is,  as  effect- 
ually done  by  one  as  by  a  half-dozen  securities ;  and  as  it  was  the 
business  of  the  clerk  who  took  the  bond  to  see  that  the  surety  was 
sufficient ;  the  law  was  in  effect  complied  with  by  the  presentation 
of  one  surety.^ 

§  135.  Where  the  law  required  the  sureties  in  the  bond  to  be 
residents  of  the  State,  it  was  considered  unnecessary  to  state  in 
the  instrument  that  they  were  so :  the  fact  would  be  presumed  J 

1  Grove  v.  Hancy,  12  Robinson  (La.),  221. 

2  Dove  V.  Martin,  23  Mississippi,  588. 

'  Bank  of  Augusta  v.  Conrey,  28  Mississippi,  667. 

*  Mandcl  v.  Feet,  18  Arkansas,  236.  «  Klliott  v.  Stevens,  10  Iowa,  418. 

*  Peiser  v.  Cushman,  13  Texas,  390.  "^  Jackson  v.  Stanley,  2  Alabama,  326. 

[95] 


§  140  ATTACHMENT  BONDS.  [CHAP.  VI. 

§  136.  It  is  no  objection  to  a  bond  taken  in  a  suit  by  a  copart- 
nership, that  the  partnership  name  was  signed  to  it  by  one  of  tho 
firm,  instead  of  the  individual  names  of  tlie  several  partners. 
If  not  binding  on  all  the  partners,  it  is  on  him  wlio  signed  it.* 
And  where  the  undertaking  was  not  under  seal,  and  the  plaintifls 
•were  a  partnership,  and  the  sureties  were  also,  and  they  signed  in 
their  respective  partnership  names,  it  was  held  that  the  undertak- 
ing was  sufficient.^  » 

§  137.  The  statutes  of  the  different  States  vary,  as  to  who  shall 
be  named  as  obligee  in  the  bond.  In  some  States,  it  is  the  defend- 
ant ;  in  others,  the  bond  is  payable  to  the  State,  with  statutory 
provision  for  suit  on  it  in  the  name  of  the  State,  to  the  use  of  the 
party  injured.  In  the  latter  case,  it  could  not  well  be  that  any 
mistake  should  be  nuule  in  naming  the  obligee  ;  but  otherwise  in 
the  former ;  and  it  is  important  to  avoid  errors  on  this  point,  as 
they  would,  if  made  in  a  material  particular,  be  fatal  to  the  at- 
tachment. Thus,  where  an  attachment  was  issued  against  a  firm 
by  its  copartnership  name,  and  the  l)ond  was  given  to  two  persons 
as  individuals,  who,  though  of  the  same  surnames  as  those  consti- 
tuting tho  firm,  were  yet  not  described  in  the  bond  as  being  the 
partners  of  the  house;  it  was  held,  that  the  statute  requiring  the 
bond  to  be  "  payable  to  the  defendant "  was  not  complied  with, 
and  the  attachment  was  quashed.^ 

§  138.  As  to  the  Amount  of  the  Bond.  This  is  in  all  cases  regu- 
lated by  statute  ;  and  the  importance  of  correctness  in  this  respect 
is  so  manifest,  and  the  means  of  exactness  so  simple,  that  few 
questions  have  arisen  in  reference  to  it. 

§  139.  It  is  no  objection  that  the  bond  is  in  a  greater  sum  than 
is  required  by  law;  ^  but  if  it  be  less  it  will  be  fatal,  unless  amend- 
able.*^ 

§  140.   In  South  Carolina,  where  the  statute  requires  the  bond 

1  Thatcher  r.  GrofF,  13  Loiiisiana,  360. 

2  Danf'orth  v.  Carter,  1  Iowa,  546 ;  Churchill  v.  Fulliam,  8  Ibid.  45. 
8  Birdsong  v.  McLaren,  8  Georgia,  521. 

*  Fellows  V.  Miller,  8  Blackford,  231  ;  Shocklcy  v.  Da\-is,  17  Georgia,  175  ;  Bourne 
V.  Hocker,  11  B.  Monroe,  21. 

6  "Williams  v.  Barrow,  3  Louisiana,  57  ;  Martin  v.  Thompson,  3  BiLb,  252  ;  Samuel  v. 
Brite,  3  A.  K.  Marshall,  317 ;  Marnine  v.  Murphy,  8  Indiana,  272. 
[96] 


CH.\p.  \t]  attachment  bonds. 


§141 


to  be  in  double  the  amount  sued  for,  it  is  held,  that  if  the  action 
be  assumpsit,  the  bond  must  be  in  double  the  sum  stated  in  the 
writ ;  if  debt,  and  the  damages  stated  in  the  writ  are  merely  nom- 
inal, the  debt  is  the  sum  sued  for,  and  the  criterion  of  the  amount 
of  the  bond  ;  but  if  the  damages  are  laid  to  cover  the  interest 
which  may  be  due,  then  the  debt  and  damages  are  the  sum  sued 
for,  and  the  bond  must  be  in  double  that  sum.^  In  tliat  State  the 
attachment  is  obtained,  without  a  statement  under  oath  of  the 
amount  actually  sued  for,  and  there  is,  therefore,  nothing  by 
whicli  that  amount  can  be  fixed,  except  the  sum  claimed  in  the 
writ.^ 

§  141.  In  Louisiana,  where,  under  their  system  of  practice,  the 
actual  sum  claimed  by  tlie  plaintiff  must  be  stated  in  the  petition 
on  whicli  the  suit  is  founded,  tiie  following  case  arose,  under  a  law 
which  required  the  bond  to  be  "  in  a  sum  exceeding  by  one  half 
that  claimed  by  the  plaintiff."  The  plaintiff,  in  order  to  obtain 
the  attachment,  swore  that  the  sum  of  82,350,  besides  interest, 
damages,  &c.,  was  due  to  him.  Afterwards,  on  filing  his  petition' 
setting  forth  his  cause  of  action,  he  claimed  a  greater  amount' 
which  resulted  from  an  allegation  of  damages,  and  a  fixation  ol' 
the  rate  of  interest ;  and  it  was  held,  that  his  claiming  in  his  pe- 
tition a  greater  amount  than  in  his  affidavit,  did  not  invalidate  the 
attachment,  and  that  the  bond  being  in  a  larger  sum  l)y  one  half 
than  that  named  in  the  affidavit,  was  sufficient,  though  it  was  not 
in  a  larger  sum  by  one  lialf  than  that  claimed  in  the  petition.^ 

But  where  tlie  plaintiff  claimed  in  his  affidavit  a  certain  sum, 
with  interest  at  a  designated  rate,  from  a  given  date,  and  the  bond 
did  not  exceed,  by  one  half,  the  amount  due,  principal  and  interest, 
it  was  held  to  be  fatal  to  the  attachment.  This  case  was  distin- 
guished from  that  just  cited,  "  because  in  that  case  the  affidavit 
stated  a  certain  sum  as  due,  '  besides  interest,  damages,  etc'  The 
bond  was  properly  proportioned  to  the  sum  named,  and  it  was 
considered  that  the  words  '  interest,  damages,  etc.,'  were  to  be 
disregarded,  because  neither  the  rate  of  interest,  nor  the  time  for 

1  Yonng  V.  Grey,  Harper,  38;  Callender  v.  Duncan,  2  Bailey,  454;  Brown  v.  White- 
ford,  4  Richard.-on,  327. 

2  Bro^^-n  v.  Whitcford,  4  Richardson,  327. 

8  Pope  V.  Hunter,  13  Louisiana,  306 ;  Jackson  r.  Warwick,  17  Ibid.  436 :  Saultcr  v. 
Butler,  10  Georgia,  510. 

'  [97] 


§  14-4  ATTACHMENT   BONDS.  [CH  \1'.  VI 

which  it  ran,  was  stated."^  But  afterwards  the  same  court,  in 
again  affirming  their  first  position,  that  the  cLaiming  in  tlie  pe- 
tition of  a  greater  sum  than  that  sworn  to,  was  not  a  cause  for 
dissolving  the  attacluncnt,  yet  held  that  the  judgment  could  not 
be  given,  with  privilege,  for  a  greater  amount  than  that  named  in 
the  affidavit,  nor  would  the  plaintifi'  be  justified  in  holding,  under 
a  levy,  a  greater  amount  of  property  than  was  necessary  to  cover 
that  sum  and  costs.-  And  this  defect  in  the  amount  of  the  bond 
cannot  be  cured  by  filing  an  additional  bund,  sufiicient  in  amount 
to  cover  the  additional  amount  claimed.^ 

§  142.  "Where  the  law  required  the  bond  to  be  in  double  the 
sum  sworn  to,  a  misrecital  in  the  bond  of  the  amount  sworn  to, 
whereby  it  appeared  that  the  bond  was  not  in  double  that  sum, 
but  less,  was  held  not  to  vitiate  the  bond,  as  the  aflidavit  con- 
trolled, in  ascertaining  the  true  sum.* 

§  14o.  In  all  these  cases  of  defective  or  insufficient  bond,  the 
defendant  is  usually  the  only  party  who  can  take  advantage  of  the 
defect.  A  subsequent  attaching  creditor  cannot  be  allowed  to 
become  a  party  to  the  suit,  so  as  to  take  advantage  of  a  defect  in 
the  bond,  in  order  that  his  attachment  may  take  the  property.^ 

§  144.  As  to  the  time  when  advantage  should  be  taken  by  the 
defendant  of  defects  in  the  bond,  for  the  purpose  of  defeating  the 
attachment,  the  rule  laid  down  as  to  affidavits  may  be  considered 
applicable,  that  the  exception  must  be  taken  in  limine.^  In  Mis- 
sissippi, as  we  have  seen,"  the  defect  is  not  cured  by  appearance 
and  plea  ;  but  it  is  nowhere  else  so  held,  and  in  South  Carolina 
the  reverse  is  the  rule.^    It  follows  that  the  objection  comes  al- 

1  Planters'  Bank  v.  B}Tne,  3  Louisiana  Annual,  687  ;  Graham  v.  Burckhalter,  2 
Ibid.  415. 

-  Fellows  V.  Diekens,  5  Louisiana  Annual,  131. 
8  Graham  v.  Burckhalter,  2  Louisiana  Annual,  415. 

*  Lawrence  v.  Featherston,  10  Smedes  &  Marshall,  345. 

5  Camberford  v.  Hall,  3  il'Cord,  345  ;  :M'Kenzie  i'.  Buchan,  1  Nott  &  M'Cord,  205  ; 
Wigfall  V.  Byne,  1  Richardson,  412 ;  Van  Arsdale  v.  Krum,  9  Missouri,  397. 

^  Gannon  i'.  Barringer,  2  Devcreux  &  Battle,  502;  Stoney  v.  M'Neill,  Harper,  156; 
"Watson  V.  M'Allister,  7  Martin,  368  ;  Enders  v.  Steamer  Henry  Clay,  8  Robinson  (La.), 
30 ;  Voorhees  v.  Hoagland,  6  Blackford,  232 ;  Beecher  v.  James,  3  Illinois  (2  Scam- 
mon),  462. 

"  Ante,  §  116. 

*  Young  V.  Grey,  Harper,  38. 

[98] 


CHAP.  VI.]  ATTACiniENT   P.OXDS.  §  140 

together  too  late  in  an  appellate  court,  particularly  when  it  was 
not  made  in  the  court  below.^  A  defendant's  appearance,  by  at- 
torney, however,  to  move  for  the  dismissal  of  an  attachment  and 
to  except  to  the  jurisdiction  of  the  court  over  him,  is  held  not  to 
be  such  an  appearance  as  will  be  construed  into  a  submission  to 
the  jurisdiction.^ 

§  145.  The  extent  to  which  courts  may  make  requirements 
upon  parties  in  regard  to  bonds,  must  depend  entirely  upon  statu- 
tory authority,  except  as  to  those  matters  which  are  apparent  on 
the  face  of  the  proceedings.  If  a  bond,  legal  in  its  terras,  parties, 
and  amount,  be  given  at  the  institution  of  the  suit,  and  accepted 
by  the  proper  officer,  the  court  will  not,  without  some  statutory 
authority,  look  into  any  alleged  want  of  sufficiency  in  the  parties. 
Thus,  if  the  sureties  were  insolvent  when  they  signed  the  bond, 
or  have  since  become  so,  the  court  will  not  sustain  a  motion  to 
require  additional  security ;  because  its  power  in  such  cases  de- 
pends wholly  upon  the  terms  of  the  statute.^ 

§  146.  There  is  no  power  in  a  court,  except  as  conferred  by 
law,  to  alhnv  an  amendment  of  an  insufficient  bond ;  *  but  this 
authority  is  now  given  in  several  States.  In  Missouri,  under  a 
statute  which  authorized  the  court  to  "  order  another  bond  to  be 
given,"  where  that  given  "  is  insufficient,  or  any  security  therein 
has  died,  or  removed  from  the  State,  or  has  become,  or  is  likely 
to  become,  insolvent,"  a  bond  was  given,  which  was  defective  in 
the  omission  of  a  material  clause  in  the  condition,  and  leave  was 
given  the  plaintiff  to  file  an  amended  bond.  It  was  contended 
that  such  an  amendment  was  not  contemplated  by  the  statute, 
but  that  the  insufficiency  must  be  for  the  reason,  either,  that  the 
security  had  died,  or  removed  from  the  State,  or  had  become,  or 
was  likely  to  become,  insolvent ;  but  it  was  held,  that  if  such  was 
the  intention  of  the  legislature,  the  words  "  that  the  bond  given 
by  the  jjlaintiff  is  insufficient "  might  as  well  have  been  omitted ; 
and  that  the  court  rightly  permitted  the  bond  to  be  amended.^ 

^  Conklin  v.  Harris,  5  Alabama,  213  ;  Fleming  v.  Burge,  6  Ibid.  37.3  ;  Burt  v.  Parish, 
9  Ibid.  211  ;  Bretney  r.  Jones,  1  G.  Greene,  366  ;  Micro  v.  Brush,  4  Illinois  (3  Scam- 
mon),  21  ;  Morris  v.  Trustees,  15  Ibid.  266;  Kritzer  v.  Smith,  21  Missouri,  296. 

■^  Bonner  v.  Brown,  10  Louisiana  Annual,  3.34. 

3  Proskey  v.  West,  8  Snacdes  &  Marshall,  711. 

*  Roulhac  V.  Rigbv,  7  Florida,  336.  ^  Van  ArsdaJe  v.  Krura,  9  Missouri,  397. 

[991 


-.§  1;",0  ATTACHMENT    l;ii.si;>.  [cilAP.  VI 

§  1-17.  Uncltt  a 'Statute  winch  provided  that  "the  plaiiitilT  be- 
fore or  during-  the  ti'ial,  should  be  permitted  to  amend  any  defects 
of  form  in  the  original  papers,"  it  was  held,  that  a  defective  bond 
might  be  amended  by  the  substitution  of  a  new  and  perfect  one;^ 
and  that  a  defect  in  the  bond  would  not  be  a  sufhcient  cause  for 
quashing  the  proceedings,  unless  an  opportunity  were  given  to  the 
phiintifT  to  execute  a  perfect  bond,  and  he  declined  doing  so.^ 

§  148.  Where  this  right  to  amend  is  given,  it  makes  no  differ-  • 
ence  whether  the  bond  lie  void  or  only  defective :  in  either  case  it 
is  the  duty  of  the  court  to  permit  the  plaintiff  to  substitute  a  suf- 
ficient bond. 3  But  the  application  to  amend  must  contemplate 
the  removal  of  all  the  objections  to  the  bond,  or  the  refusal  to  al- 
low tlie  amendment  will  not  be  error.  Therefore,  where  the  bond 
was  witliout  seals  to  the  names  of  the  i)rincipal  and  surety,  and 
the  principal  asked  leave  to  affix  a  seal  to  his  own  name,  which 
was  refused,  and  the  attachment  quashed  for  want  of  sufficient 
bond  ;  it  was  held  not  to  be  error,  because,  if  the  seal  had  been 
affixed  to  his  name,  the  bond  would  still  have  been  insufficient, 
from  the  want  of  a  seal  to  that  of  the  surety.* 

§  148  a.  When  a  plaintiff  has  ol)tained  leave  to  file  an  amended 
bond,  and  has  done  so,  it  is  substituted  for  that  originally  given, 
and  has  the  effect  of  sustaining  the  attachment  from*  the  com- 
mencement of  the  action,  and  is  to  be  treated  as  the  defendant's 
security  from  that  time.^ 

§  149.  Where  the  plaintiff  needs  the  testimony  of  a  surety  in 
his  bond,  he  will  be  allowed,  if  no  liability  on  the  bond  has  already 
accrued,  to  substitute  a  new  surety,^ 

§  150.  The  errors  and  defects  of  attachment  bonds,  however 
they  might  affect  the  attachment  suit,  do  not  impair  the  liability 
of  the  obligors  to  the  defendant.     Upon  them  the  obligation  cou- 

1  Lowry  v.  Stowe,  7  Porter,  483. 

2  P.  &  M.  Bank  v.  Andrews,  8  Porter,  404  ;  Lowe  v.  Derrick,  9  Ibid.  415  ;  Tovis  v. 
Hughes,  10  Missouri,  380  ;  Scott  v.  Macy,  3  Alabama,  250  ;  Lea  v.  Vail,  3  Illinois  (2 
Scammon),  473  ;  Wood  v.  Sciuires,  28  Missouri,  528 ;  Beardslee  v.  Morgan,  29  Ibid.  471 ; 
Henderson  v.  Drace,  30  Ibid.  358. 

8  Jackson  v.  Stanley,  2  Alabama,  326 ;  Conklin  v.  Harris,  5  Ibid.  213. 
*  Hunter  v.  Ladd,  2  Illinois  (1  Scammon),  551. 
5  Branch  of  State  Bank  v.  Morris,  13  Iowa,  136. 
8  Tyson  v.  Lansing,  10  Louisiana,  444. 
[100] 


CHAP.  VT.]  ATTACHMENT   BONDS. 


§132 


tiniies,  though  the  attachment  might  have  been  quashed  because 
of  the  insufficiency  of  the  instrument,  either  as  to  amount,  terms, 
or  the  time  of  its  execution.  Thus,  tliough  a  bond  be  not  taken 
until  after  the  writ  is  issued,  —  which  we  have  seen  is  a  proper 
ground  for  quashing  the  writ,— i  the  oWigors  cannot  set  up  that 
fact  as  a  defence  to  an  action  on  tlie  instrument.^  But  if  it  be 
not  given  till  after  the  suit  is  dismissed,  it  is  wholly  void.'^  And 
^  the  omission  from  a  bond  of  a  part  of  the  condition  required  by 
the  statute,  does  not  invalidate  it  as  against  the  obligors,  but,  to 
the  extent  it  goes,  it  is  valid.* 

§  151.  Where  a  bond  is  executed  without  being  required  or 
authorized  by  any  statute,  the  makers  cannot  defend  against  it  on 
that  ground:  it  is  good  as  a  common  law  bond.  This  was  ruled 
in  an  action  on  a  bond,  given  by  a  plaintiff  on  commencing  a  suit 
by  attachment  in  a  Circuit  Court  of  the  United  States,  and  the 
bond  was  made  to  the  United  States.  Xo  law  of  the  United  States 
requiring  it,  and  not  being  executed  in  connection  with  any  busi- 
ness of,  or  any  duty  of  the  obligors  to,  the  government,  it  was 
contended  that  it  could  not  be  enforced ;  but  the  court  determined 
otherwise.^ 

§  152.  The  bond  is  not  confined,  in  its  obligation,  to  the  pro- 
ceedings in  the  court  in  which  the  attachment  suit  was  instituted, 
but  extends  on  to  the  final  determination  of  the  cause.  Where  the 
condition  was  "  to  pay  the  defendant  all  damages  and  costs  which 
he  may  sustain  by  reason  of  the  issuing  of  the  attachment,  if  the 
plaintiff  fail  to  recover  judgment  tlicreon,"  the  plaintiff  recovered 
judgment  in  the  court  in  which  the  suit  was  brought,  and  the 
defendant  appealed  therefrom,  and  in  the  appellate  court  the  judg- 
ment was  reversed.  When  sued  on  the  bond,  the  obligor  urged 
that  the  condition  was  not  broken,  inasmuch  as  he  had  recovered 
judgment  in  the  attachment  suit ;  but  this  view  was  not  sustained ; 
the  court  considering  that  the  bond  was  not  restricted  to  the  court 
in  which  the  attachment  was  obtained,  but  extended  to  the  final 
result  of  the  case.^ 

»  Ante,  §  121.  2  Sumpter  v.  Wilson,  1  Indiana,  144. 

«  Benedict  v.  Bray,  2  California,  251. 

♦  Hiljbs  V.  Blair,  14  Tcnn.  State,  413;  State  v.  Berr>-,  12  Missouri,  376. 

6  Barnes  v.  Webster,  16  Missouri,  258;  Sheppard  t-.' Collins,  12  Iowa,  570. 

*  Ball  V.  Gardiner,  21  Wendell,  270 ;  Bennett  v.  Brown,  20  New  York,  99. 

[lUl] 


§  155  ATTACHMENT  BONDS.  [cUAP.  VL 

§  153.  Approaching  now  the  subject  of  actions  on  these  bonds, 
the  inquiry  arises,  What  is  the  intention  of  legii-latures  in  re- 
quiring such  bonds  to  be  given  ?  Is  it  that  they  shall  supersede 
tlie  common  law  action  for  malicious  prosecution  ?  If  so,  the 
defendant  in  the  attachment  can  maintain  no  action,  save  on  the 
bond.  If  not,  then  the  bond  must  be  intended,  eitlier  as  a  mere 
security  for  what  may  be  recovered  in  an  action  for  malicious 
prosecution,  or  as  authorizing  a  recovery  of  damages  for  a  wrong- 
ful attrtchnicnt,  on  other  principles  than  those  established  by  the 
common  law  in  actions  for  malicious  prosecution. 

§  154.  On  the  first  point,  it  has  been  uniformly  decided,  that 
the  remedy  of  the  attachment  debtor  for  a  wrongful  attachment, 
by  an  action  for  malicious  prosecution,  is  not  affected  by  the  exe- 
cution of  the  bond,  l)ut  that  that  remedy  still  subsists.^ 

§  155.  On  the  second  point,  it  seems  incontrovertible  that  the 
bond  is  not  intended  as  a  mere  security  for  the  payment  of  what 
may  be  recovered  in  an  action  for  malicious  prosecution  ;  for  if  so 
intended,  it  should  be  conditioned  for  the  payment  of  the  damages 
which  the  defendant  may  sustain  by  reason  of  the  attachment 
having  been  sued  out  maliciously  and  without  probable  cause  ; 
but  such  are  never  the  terms  used.  Again,  the  penalty  is  always 
in  a  prescribed  sum,  which  in  many  cases  would  be  much  less  than 
the  amount  that  might  be  recovered  in  an  action  for  malicious 
prosecution.  And  again,  if  so  intended,  no  action  could  properly 
be  maintained  upon  it,  until  the  damages  had  been  liquidated  and 
determined  in  an  action  for  malicious  prosecution ;  whereas,  it  is 
a  constant  practice  to  sue  in  the  first  instance  on  the  bond,  and 
has  been  repeatedly  decided  to  be  admissible.^  Hence  we  appre- 
hend that  the  bond  is  not  intended  merely  as  a  security  for  dam- 
ages recoverable  in  an  action  for  malicious  prosecution  ;  and  that 
ill  requiring  such  bonds,  it  is  intended  to  authorize  the  recovery 
of  other  than  such  damages ;  and  that  a  recovery  on  them  is  not 
restricted  to  that  authorized  by  the  principles  of  the  common  law 
governing  actions  for  malicious  prosecution. 

1  Sanders  v.  Hughes,  2  Brevard,  495  ;  Dotinell  v.  Jones,  13  Alabama,  490 ;  Smita 
V.  Story,  4  Humphreys,  169  ;  Pettit  r.  Mercer,  8  B.  Monroe,  51  ;  Senecal  v.  Smith,  9 
Robinson  (La.),  418 ;  Smith  v.  Eakin,  2  Sneed,  456  ;  Bruce  v.  Coleman,  1  Handy,  515  ; 
Sledge  V.  McLaren,  29  Georgia,  64 ;  Churchill  v.  Abraham,  22  Illinois,  455. 

2  Post,  §  166. 

[102] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  lo6 

§  156.  This  subject  was  discussed  by  the  Court  of  Appeals  of 
Kentucky,  in  a  case  where  the  condition  of  the  bond  was  "  for  the 
payment  of  all  costs  and  damages  sustained  by  the  defendant  by 
reason  of  the  wrongful  issuing  of  the  order  for  the  attachment." 
In  tlie  course  of  the  delivery  of  their  opinion,  the  court  express 
themselves  in  the  following  terms  :  "  The  extent  to  which  the 
plaintiff  has  a  right  to  recover  in  a  suit  of  this  kind,  or  in  other 
words,  his  right  to  damages  commensurate  to  the  injury  sustained 
by  him  in  consequence  of  the  extraordinary  proceeding  by  attach- 
ment, forms  the  chief  subject  of  inquiry  in  this  case.  Has  he  a 
right  to  show  that  his  credit  has  been  seriously  affected,  liis  sensi- 
bilities wounded,  and  his  business  operations  materially  deranged, 
in  consequence  of  the  attachment  having  been  sued  out ;  and  to 
rely  upon  these  matters  to  enhance  the  amount  of  damages  ?  Or 
is  he  to  be  confined  to  the  costs  and  expenses  incurred  by  him,  and 
such  damages  as  he  may  have  sustained  by  a  deprivation  of  the  use 
of  his  property,  or  any  injury  thereto,  or  loss  or  destruction  there- 
of, by  the  act  of  the  plaintiff  in  suing  out  the  attachment? 

"  The  defendant  has  a  right  to  bring  an  action  on  the  case  against 
the  plaintiff  for  a  vexatious  and  malicious  proceeding  of  this  kind. 
In  such  a  suit,  damages  may  be  claimed  for  every  injury  to  credit, 
business,  or  feelings.  But  to  sustain  such  a  suit,  and  enable  the 
plaintiff  to  succeed,  malice  upon  the  part  of  the  defendant,  and 
the  want  of  probable  cause,  are  both  requisite.  In*  a  suit  on  the 
bond,  the  plaintiff  is  not  bound  to  show  malice,  nor  can  the  de- 
fendant rely,  by  way  of  defence,  upon  probable  cause.  It  would 
seem,  therefore,  to  follow,  that  such  injuries  as  he  is  entitled  to 
redress  for,  only  where  malice  exists,  and  probable  cause  is  want- 
ing, could  not,  with  any  propriety,  be  estimated  or  taken  into 
consideration  in  a  suit  on  the  bond.  To  allow  it  to  be  done  would 
be  inconsistent  with  all  the  analogies  of  the  law,  which  should  not 
be  violated,  unless  it  be  imperiously  required  by  the  terms  of  the 
bond,  or  the  presumed  intention  of  the  legislature. 

"  If  an  order  has  been  obtained  without  just  cause,  and  an  at- 
tachment has  been  issued,  and  acted  on  in  pursuance  of  the  order, 
the  terms  of  the  bond  secure  to  the  defendant  in  the  attachment 
all  costs  and  damages  that  he  has  sustained  in  consequence  thereof. 
The  condition  of  the  bond  is  satisfied,  and  its  terms  substantially 
complied  with,  by  securing  to  him  damages  adequate  to  the  in- 
jury to  the  property  attached,  and  the  loss  arising  from  the  dep- 

[103] 


§  157  ATTACHMENT  BONDS.  [CHAP.  VI. 

rivation  of  its  use,  together  with  the  actual  costs  aud  expenses 
iucurred. 

"  It  cannot  be  rationally  presumed  that  the  legislature  designed 
to  impose  on  the  security  in  the  bond  a  more  extensive  liability. 
The  statute  is  remedial  in  its  character,  and  should  be  expounded 
so  as  to  advance  the  object  contemplated.  To  im])ose  an  almost 
unlimited  liability  on  the  security  in  the  bond,  sufficient  to  em- 
brace every  possible  injury  that  the  defendants  might  sustain, 
would  be  in  efiect  to  defeat  in  a  great  measure  the  object  of  the 
statute,  by  rendering  it  difficult,  if  not  impracticable,  for  the  plain- 
tiff to  execute  the  necessary  bond."  ^ 

§  157.  Tlie  introduction  of  attachment  bonds  into  the  practice 
of  the  courts  in  Alabama,  led  to  a  change  in  the  conunon  law 
principles  which  would  otherwise  have  regulated  the  action  for  a 
wrongful  attachment.  The  first  reported  decision  on  this  subject 
in  that  State,  was  made  in  an  action  on  the  case;  in  which  the 
declaration  charged  that  the  defendant,  without  any  just  or  prob- 
able cause,  procured  an  attachment  to  be  issued  and  levied  on  the 
plaintifl's  property.  This,  as  a  declaration  for  malicious  prosecu- 
tion, was  at  the  common  law  manifestly  insufficient.  Plea,  not 
guilty,  and  issue.  On  the  trial,  the  Circuit  Court  charged  the  jury 
that  in  this  action  it  was  essential  to  prove  malice.  Upon  excep- 
tion to  this  charge  the  case  went  to  the  Supreme  Court,  where  the 
decision  of  the  Circuit  Court  was  overruled ;  the  judgment  of  the 
Supreme  Coiirt  manifestly  resting  on  the  existence  of  the  law  re- 
quiring a  bond  to  be  given,  though  the  action  was  not  on  the  bond. 
That  law  was  considered  as  changing  the  common  law  rule  in  such 
cases. 

"  In  actions  for  a  malicious  prosecution,"  said  the  court,  "  the 
malice  of  defendant  must  be  proved,  or  implied  from  the  cir- 
cumstances, to  entitle  the  plaintiff  to  recover.  Is  the  action  for 
wrongfully  suing  out  an  attachment  to  be  regulated  by  the  same 
principles  ?  Tlie  original  attachment  is  a  process  created  by 
statute,  authorized  only  in  particular  cases,  its  abuse  carefully 
guarded   against,  and  the  remedy  pursued  in  this  way  always 

1  Pettit  V.  Mercer,  8  B.  Monroe,  51  ;  Bruce  v.  Coleman,  1  Handy,  515.  In  Georgia, 
where  the  bond  is  for  the  payment  of  "all  damages  which  may  be  recovered  against 
the  plaintiff"  for  suing  out  the  attachment,  it  is  held  to  be  only  security  for  the  pay- 
ment of  such  damages  as  may  be  recovered  in  an  action  for  malicious  attachment. 
Sledge  V.  McLaren,  29  Georgia,  64. 
[104] 


CHAP.  M.]  ATTACHMENT  BONDS.  8  157 

liable  to  strict  construction.  By  our  statute  regulating  it,  the 
plaintiff  in  an  action  so  commenced  is  required  to  give  bond  and 
security  conditioned  to  satisfy  the  defendant  all  costs  and  damages 
*  awarded  for  wrongfully  suing  out'  (Act  of  1807),  or  all  such 
damages  as  he  may  sustain  by  the  wrongful  or  vexatious  suing 
out  of  such  attachment  (Act  of  1814).  In  providing  this  extraor- 
dinary remedy  for  the  plaintiff,  the  legislature  intended  also  to 
protect  the  rights  of  defendants.  It  was  obvious  that  the  taking 
and  detention  of  his  property  might  be  ruinous  to  the  owner, 
although  there  was  no  sort  of  malice  or  corrupt  motive  in  the 
party  at  whose  suit  it  might  be  attached.  Why  should  the  con- 
dition prescribed  for  the  bond  be  '  to  pay  all  damages  sustained  by 
the  u'rongfid  or  vexatious  suing  out,'  if  it  had  been  the  intention 
of  the  legislature  that  no  damages  should  be  recovered  unless  for 
the  malicious  suing  out?  If  such  had  been  their  intention,  would 
not  the  term  malicious  readily  have  occurred,  and  been  used  in- 
stead of  those  employed  ?  A  verbal  criticism  can  hardly  be 
necessary  to  prove  that  the  party  whose  property  is  attached  may 
find  the  proceeding  wrongful  and  vexatious,  that  the  suing  it  out 
may  be  ruinous  to  his  credit  and  circumstances,  though  obtained 
without  the  least  malice  towards  him.  If  the  plaintiff,  under 
color  of  the  process,  do,  or  procure  to  be  done,  what  the  law  has 
not  authorized,  and  the  defendant  is  thereby  injured,  it  seems 
clear  that  he  is,  in  such  case,  as  much  as  in  any  other,  entitled 
to  redress  from  the  party  whose  illegal  or  '  wrongful '  act  has 
occasioned  the  injury,  although  it  may  have  been  done  without 
malice."  ^ 

The  next  was  also  an  action  on  the  case,  for  suing  out  an  at- 
tachment without  any  reasonable  or  probable  cause,  and  for  the 
purpose  of  vexing  and  harassing  the  plaintifif.  The  Supreme 
Court  again  held,  that  the  expression  of  the  legislative  will,  in 
designating  the  terms  of  the  bond,  indicated  that  the  mere  wrong- 
ful recourse  to  this  process  was  a  sufficient  cause  of  action,  and 
that  malice  was  important  only  in  connection  with  the  question  of 
damages. 2 

The  same  court  held,  that  actions  on  attachment  bonds  are 
governed  in  all  respects  by  the  rule  they  had  established  as  appli- 
cable to  actions  on  the  case,  except  the  recovery,  which  could  not 

^  Wilson  V.  Outlaw,  Minor,  367  ;  Kirksey  v.  Jones,  7  Alabama,  622. 
2  Kirksey  v.  Jones,  7  Alabama,  622;  Seay  v.  Greenwood,  21  Ibid.  491. 

[105] 


§  159  ATTACHMENT   BONDS.  [CHAP.  VI. 

exceed  the  penalty  of  the  bond.^  This  rule  was  expressed  in  these 
words :  "  Whenever  an  attacliment  is  wrongfully  sued  out,  and 
damage  is  thereby  caused  to  the  defendant  in  the  suit,  he  is  enti- 
tled, by  force  of  the  statutory  provision,  to  recover  for  the  actual 
injury  sustained.  And  if,  in  addition  to  its  being  wrongfully  sued 
out,  it  is  also  vcxatiously,  or  in  other  terms,  malicious^ly  sued,  then 
the  defendant,  upon  the  principle  which  governs  the  correlative 
action  for  a  malicious  prosecution,  may  recover  damages  as  a  com- 
pensation for  tlie  vexatious  or  malicious  act ;  or,  in  the  terms  of 
the  statute,  such  damages  as  he  may  be  entitled  to  on  account  of 
the  vexatious  suit."  ^ 

§  158.  In  Louisiana,  the  same  views  as  those  entertained  in 
Alabama  liave  been  expressed,  as  well  in  actions  on  attachment 
bonds,  as  in  those  which,  as  reported,  do  not  appear  to  be  of  that 
character.  There,  the  bond  is  "  for  the  payment  of  such  dinnages 
as  the  defendant  may  recover,  in  case  it  should  be  decided  that 
the  attachment  was  wrongfully  issued."  While  the  common  law 
principles  governing  actions  for  malicious  prosecution  are  there 
fully  recognized  and  affirmed,^  it  is  held,  that  where  no  malice 
exists,  the  actual  damage  sustained  may  be  allowed :  if  malice 
exists,  vindictive  damages  may  be  recovered.* 

§  159.  In  Missouri,  where  the  condition  of  the  bond  was  "  lor 
the  prosecution  of  the  suit  without  delay  and  with  effect,  and  the 
payment  of  all  damages  which  should  accrue  to  the  defendant  or 
any  garnishee,  in  consequence  of  the  attachment,"  the  principles 
of  the  common  law  in  regard  to  actions  for  malicious  prosecution 
have  not  been  applied  to  actions  on  these  bonds,  but  on  the  con- 
trary the  recovery  of  actual  damages  was  allowed  in  a  case  pre- 
senting no  ingredient  of  malice.^  And  so  in  New  York,^  and  in 
Ohio." 

1  Hill  V.  Rushing,  4  Alabama,  212;  McCullough  v.  "Walton,  11  Ibid.  492. 

2  Kirksey  v.  Jones,  7  Alabama,  622 ;  McCullough  v.  "Walton,  1 1  Ibid.  492 ;  Donnell  v. 
Jones,  13  Ibid.  490  ;  Sharpe  v.  Hunter,  16  Ibid.  765  ;  Floyd  v.  Hamilton,  33  Ibid.  235. 

3  Senecal  v.  Smith,  9  Robinson  (La.),  418 ;  Grant  v.  Deuel,  3  Ibid.  17. 

*  Cox  V.  Robinson,  2  Robinson  (La.),  313  ;  OfFutt  ».  Edwards,  9  Ibid.  90;  Horn  v. 
Bayard,  11  Ibid.  259;  Littlejohn  v.  "Wilcox,  2  Louisiana  Annual,  620;  Moore  v.  With- 
enburg,  13  Ibid.  22. 

5  Hayden  v.  Sample,  10  Missouri,  215. 

6  Dunning  v.  Humphrey,  24  "Wendell,  31  ;  Winsor  v.  Orcutt,  11  Paige,  578. 
1  Bruce  v.  Coleman,  1  Handy,  515. 

[106] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  163 

§  IGO.  In  Tennessee,  however,  where  the  bond  is  conditioned 
"  for  satisfying  all  costs  wliich  shall  be  awarded  to  the  defendant, 
in  case  the  plaintiff  shall  be  cast  in  the  suit,  and  also  all  damages 
which  shall  be  recovered  against  the  plaintiff  in  any  suit  which 
may  be  brought  against  him,  for  wrongfully  suing  out  the  attach- 
ment," it  was  decided,  in  an  action  on  the  case  for  a  wrongful 
attachment,  that  the  principles  of  the  common  law  remained  un- 
changed ;  ^  and  that  in  an  action  on  the  bond,  a  recovery  might  be 
had,  not  only  for  such  damages  as  are  properly  recoverable  in  the 
common  law  action,  but  likewise  for  other  damages,  upon  grounds 
contemplated  by  the  statute,  and  not  embraced  by  the  principles 
governing  the  action  on  the  case.^ 

§  161.  From  this  summary  of  the  views  of  different  courts  on 
this  subject,  it  is  apparent  that  the  execution  of  a  cautionary  bond 
by  an  attachment  plaintiff,  modifies  the  common  law  rule,  and 
gives  the  defendant  recourse  against  the  plaintiff  on  the  bond,  for 
a  wrongful  attachment,  where  there  existed  no  malice  in  suing  it 
out.  The  practical  working  of  this  rule  will  be  presently  exhib- 
ited, in  connection  with  the  question  of  damages. 

§  162.  The  only  party  who  can  maintain  an  action  on  an  at- 
tachment bond  is  the  defendant.  The  bond  is  not  required  for 
the  protection  of  the  officer  executing  the  attachment,  nor  for  the 
mdemnification  of  a  third  party  whose  property  may  be  wrongfully 
attached,  but  simply  for  the  benefit  of  the  party  against  whom  the 
writ  issues.  This  was  so  held  in  Virginia,  where  the  condition  of 
the  bond  was  "  to  pay  all  costs  and  damagQS  which  may  be  awarded 
against  the  plaintiff,  or  sustained  by  any  person^  by  reason  of  his 
suing  out  the  attachment."  ^     And  so  in  Louisiana.* 

§  162  a.  No  action  will  lie  on  the  bond  until  the  attachment 
shall  have  been  discharged ;  and  such  final  disposition  of  it  must 
be  alleged.^ 

§  163.   Where  there  are  several  defendants,  and  a  bond  in  favor 

1  Smith  V.  Story,  4  Humphreys,  169. 

2  Smith  V.  Eakin,  2  Sneed,  4.56. 

8  Davis  V.  Commonwealth,  1.3  Grattan,  139. 

*  Raspillier  v.  Brownson,  7  Louisiana,  231 ;  Edwards  v.  Turner,  6  Robinson  (La.),  382. 

6  Nolle  V.  Thompson,  3  Metcalfe  (Ky.),  121. 

.  .    [107] 


§  166  ATTACHMENT  BONDS.  [CHAP.  VI. 

of  them  all,  the  action  on  the  bond  must  be  in  the  name  of  all, 
though  the  attachment  was  levied  on  the  separate  property  of  each, 
in  which  they  have  not  a  joint  interest.  How  the  damages  are  to 
be  divided  between  the  obligees  in  the  bond,  is  a  matter  with 
■which  the  obligors  have  no  concern,  as  they  will  be  protected  by 
a  recovery  in  the  names  of  all  the  obligees,  from  another  action, 
by  all,  or  either.^ 

§  164.  It  is  not  at  all  necessary,  in  order  to  enable  the  party 
injured  to  maintain  a  suit  on  the  bond,  that  he  should  obtain  an 
order  of  the  court  in  which  the  bond  was  filed,  to  deliver  it  to  him 
for  suit.'^ 

§  165.  The  sureties  in  the  bond  can  be  subjected  to  liability 
Tinder  it,  only  in  reference  to  the  particular  writ  for  obtaining 
which  it  was  given.  This  was  decided  in  Louisiana,  upon  the  fol- 
lowing case :  A.  sued  out  an  attachment,  and  gave  bond.  The 
attachment  was  not  executed,  and  some  time  afterward  A.  volun- 
tarily abandoned  it,  and  took  out  another,  without  giving  any  new 
bond.  It  was  held,  that  the  liability  of  the  surety  on  the  bond 
extended  only  to  the  time  of  the  abandonment  of  the  first  writ, 
and  could  not  be  revived  without  his  consent.^ 

§  166.  The  question  is  here  presented,  whether,  in  order  to 
maintain  an  action  on  the  bond,  the  damages  must  first  be  recov- 
ered in  a  distinct  action  ?  This  is  not  believed  to  be  requisite,  and 
it  was  so  decided  in  Virginia,  where  the  bond  is  to  pay  "  all  such 
costs  and  damages  as  may  accrue  for  wrongfully  suing  out  the 
attachment";*  in  Alabama,  where  it  is  to  pay  "  all  such  costs  and 
damages  as  he  might  sustain  by  the  wrongful  or  vexatious  suing 
out  of  the  attachment";^  in  Tennessee,  where  it  is  to  pay  "  aH 
damages  which  shall  be  recovered  against  the  plaintiff  in  any  suit 
which  may  be  brought  against  him,  for  wrongfully  suing  out  the 
attachment "  ;^  in  Ohio,  where  it  is  "  to  pay  all  damages  which  the 
defendant  may  sustain  by  reason  of  the  attachment,  if  the  order 
therefor  be  wrongfully  obtained";^   and  in  Illinois,  where  it  is 

1  Boyd  V.  Martin,  10  Alabama,  700.  ^  Bruce  v.  Coleman,  1  Handy,  515. 

8  Erwin  v.  Com.  &  R.  R.  Bank,  12  Robinson  (La.),  227. 
*  Dickinson  v.  McGraw,  4  Randolph,  158. 
6  Hemdon  v.  Forney,  4  Alabama,  243. 

6  Smith  V.  Eakin,  2  Sneed,  456.  ■?  Bruce  v.  Coleman,  1  Handy,  515. 

[108] 


CHAP.  VI.]  ATTACHMENT  BONDS.  S  168 

*'  to  pay  and  satisfy  the  defendant  all  such  costs  and  damages  as 
shall  be  awarded  against  the  plaintiff  in  any  suit  which  may  here- 
after be  brought  for  wrongfully  suing  out  the  attachment."  ^  The 
Supreme  Court  of  Georgia,  however,  took  a  different  view,  where 
the  bond  was  to  pay  "  all  damages  which  may  be  recovered  against 
the  said  plaintiff  for  suing  out  the  attachment";  terms  almost  the 
same  as  tliose  in  the  Tennessee  bond.^  And  in  Mississippi,  where 
the  bond  was  "  to  pay  and  satisfy  the  defendant  all  such  costs  and 
damages  as  sliall  be  awarded  against  him  in  any  suit  which  may 
be  hereafter  brought  for  wrongfully  suing  out  the  attachment,"  it 
was  held,  that  suit  must  first  be  brought  against  the  principal  in 
the  bond,  and  that  an  action  thereon  against  the  sureties  can  only 
be  maintained  in  the  event  of  his  failure  to  pay  the  costs  and 
damages  recovered  against  him  in  such  suit.^ 

§  107.  Debt  is  undoubtedly  the  proper  form  of  action  on  at- 
tachment bonds  ;  but  it  has  been  held  that  covenant  will  lie.^  In 
assigning  breaches,  it  is  not  sufficient  merely  to  negative  the  terms 
of  the  condition.  The  declaration  must  show  that  the  attachment 
was  wrojigfuUy  sued  out,  and  what  damages  the  plaintiff  has  sus- 
tained. Therefore,  where  the  condition  was,  that  the  attachment 
plaintiff  should  prosecute  his  attachment  to  effect,  and  pay  and 
satisfy  the  defendant  all  such  costs  and  damages  as  he  might  sus- 
tain by  the  wrongful  or  vexatious  suing  out  of  such  attachment ; 
and  the  breach  assigned  was,  that  the  obligor  did  not  prosecute 
his  attachment  to  effect,  nor  pay  plaintiff  the  costs,  damages,  etc., 
which  he  sustained  by  the  wrongful  and  vexatious  suing  out  of  the 
attachment,  by  means  whereof  the  said  bond  became  forfeited,  and 
the  defendant  liable  to  pay  the  penalty ;  the  declaration  was  held 
bad  on  demurrer.^ 

§  168.  In  assigning  breaches,  if  the  damages  alleged  to  have 
been  sustained  exceed  the  amount  of  the  penalty,  it  is  proper  to 
assign  the  non-payment  of  the  penalty.  Where  the  damages 
claimed  do  not  equal  the  penalty,  the  avermenl^  should  be  that 
they  have  not  been  paid.^ 

1  Churchill  v.  Abraham,  22  Illinois,  455.  2  gledge  v.  Lee,  19  Georgia,  411. 

8  Holcomb  V.  Foxworth,  34  Mississippi,  265.       *  Hill  v.  Rushing,  4  Alabama,  212. 
5  Flanagan  i'.  Gilchrist,  8  Alabama,  620 ;  Winsor  v.  Orcutt.  11  Faige,  578  ;  Love  v. 
Kidwell,  4  Blackford,  553. 
•5  Hill  !■   Rushing,  4  Alabama,  212. 

[109] 


§  170  ATTACIDIEXT   BONDS.  [CIIAP.  VI. 

§  109.  Tlie  recital  in  the  condition  that  the  jthiintifT  had  issued 
a  writ  of  attachment  against  the  defendant,  estops  the  ohhgors 
from  denying  by  plea  that  the  attachment  was  sued  out,  and  such 
a  plea  is  bad  on  general  demurrer.^ 

§  170  Under  what  circumstances  may  the  attachment  defend- 
ant maintain  an  action  on  the  bond  ?  Does  the  mere  faihire  of 
the  plaiutifT  to  prosecute  his  suit  work  a  forfeiture  of  the  condi- 
tion ?  The  Supreme  Court  of  Louisiana  has  gone  very  far  in 
giving  recourse  on  the  bond  in  such  case.  There,  it  will  be  re- 
membered, the  obligation  is  "  for  the  payment  of  such  damages  as 
the  d(;fcndant  may  recover,  in  case  it  should  be  decided  that  the 
attachment  was  ivrondfully  obtained  ^^ ;  and  it  is  held,  that  if  a 
plaintiff  voluntarily  al)andons  his  attachment,  he  renders  himself 
and  his  surety  responsible  in  damages.  The  same  court,  with  less 
ap})arent  reason,  has  gone  further,  and  decided  that,  though  it 
appear  that  the  plaintiff  had,  at  the  commencement  of  his  suit,  a 
sufficient  and  very  probable  cause  of  action,  and  was  prevented 
from  getting  a  judgment  by  some  technical  olyection,  or  irregu- 
larity in  the  proceedings,  which  could  not  be  foreseen,  the  defend- 
ant may  nevertheless  hold  him  liable  for  the  damages  he  actually 
sustained ;  and  that,  if  an  attachment  be  set  aside  l)y  order  of  the 
court,  it  is  primd  facie  evidence  that  it  was  wrongfully  obtained.^ 
A  decision  was  once  given,  that  would  seem  to  exempt  the  surety 
in  such  a  case  from  liability ;  ^  but  this  doctrine  was  held  to  be 
ina])})licable  to  the  plaiutifT.*  As,  in  that  State,  the  defendant's 
claim  on  the  bond  for  damages  undoubtedly  rests  on  its  being  de- 
cided that  the  attachment  was  "  zcrowjifuUi/  obtained,''^  it  is  difficult 
to  see  upon  what  principle  the  plaintiff  can  be  charged,,  when  it  is 
admitted  that  the  attachment  was  rightfully  obtained,  but  he  failed 
to  obtain  a  judgment,  for  technical  reasons,  having  no  connection 
with  the  merits  of  the  action  or  the  cause  for  attachment. 

The  Supreme  Court  of  Alabama  took  a  different  view  of  the 
subject,  and  one  more  consonant  with  sound  reason.  In  an  action 
on  an  attachment  bond,  the  condition  of  which  was,  "  that  the 
plaintiff  should  prosecute  his  attachment  to  effect,  and  pay  the 
defendant  all  such  costs  and  damages  as  he  may  sustain  by  the 

1  Love  t'.  Kidwell,  4  Blackford,  553.        ^  Qq^  v.  Eobinson,  2  Robinson  (La.),  313. 
8  Garretson  v.  Zacharie,  8  Martin,  x.  s.  481. 
*  Cox  V.  Robinson,  2  Robinson  (La.),  313. 
[110] 


CHAP.  VI.]  ATTACHilENT  BONDS.  S  170 

wrongful  or  vexatious  suing  out  the  attachment,"  it  appeared  that 
iu  the  attachment  suit,  the  defendant,  by  a  plea  in  abatement 
caused  the  attachment  to  be  quaslicd,  for  informality  in  the  affida- 
vit upon  which  it  issued,  and  then  sued  the  plaintiff  for  damages. 
On  the  trial  of  this  suit  for  damages,  it  was  shown  that  there  were 
good  grounds  for  the  attachment,  though  not  sufficiently  set  out 
in  the  affidavit.  Tlie  court  charged  the  jury,  that  if  they  believed 
'  the  attachment  was  sued  out,  and  was  abated  on  plea,  the  plaintiff 
was  entitled  to  recover  the  actual  damage  he  had  sustained.  The 
Supreme  Court  held  this  instruction  to  be  wrong,  and  observed : 
"  What  is  meant  by  the  term  '  wrongful,'  as  used  in  the  statute  to 
which  this  bond  conforms  ?  Was  it,  as  is  contended,  designed  to 
apply  to  defects  in  the  form  of  the  ])roceeding,  on  account  of  which 
the  attachment  should  be  quashed,  as  w^ell  as  to  the  ground  upon 
which  it  was  to  be  issued  ?  Or  was  the  object  of  the  framers  of 
the  act  merely  to  provide  a  remedy  against  persons  who  should 
resort  to  this  extraordinary  remedy  to  the  prejudice  of  another, 
without  cause  or  sufficient  ground  therefor  ?  We  think  that  by 
the  wrongful  suing  out  of  the  attachment,  is  meant,  not  the  omis- 
sions, irregularities,  or  informalities  which  the  officer  issuing  the 
process  may  have  committed  in  its  issuance,  but  that  the  party 
resorted  to  it  without  sufficient  ground."  ^ 

In  Kentucky,  where  the  bond  was  conditioned  "  for  the  payment 
of  all  costs  aiul  damages  sustained  by  the  defendant  Ijy  reason  of 
the  wrongful  issuing  of  the  order  for  an  attachment,"  —  terms,  in 
substance,  equivalent  to  those  of  the  Louisiana  bond,  —  it  was 
held,  that  a  mere  failure  to  prosecute  the  suit  does  not  give  an 
action  on  the  bond.  The  order  must  have  been  procured  wrong- 
fully and  without  just  cause,  to  constitute  a  breach  of  the  condi- 
tion, although  the  plaintiff  may  have  abandoned  the  prosecution 
of  the  suit.2 

In  Tennessee,  the  condition  of  the  bond  is,  "  for  satisfying  all 
costs  which  shall  be  awarded  to  the  defendant,  in  case  the  plaintifl 
shall  be  cast  in  the  suit,  and  also  all  damages  which  shall  be  re- 
covered against  the  plaintiff  in  any  suit  or  suits  which  may  be 
brought  against  him  for  wrongfully  suing  out  the  attachment"; 
and  it  has  been  there  decided,  that  mere  want  of  success  does  not 
per  se  subject  the  plaintiff  to  an  action.^ 

1  Sharpe  r.  Hunter,  16  Alabama,  76.}.  »  Smith  v.  Story,  4  Humphreys,  169. 

2  Pettit  V.  Mercer,  8  B.  Monroe,  51. 

[Ill] 


§  173  ATTACHMENT  BONDS.  [CHAP.  VI. 

§  171.  In  an  action  on  the  iDond,  where,  in  the  attachment  suit, 
the  proceedings  were  entirely  ex  parte,  it  is  not  suflicient  merely 
to  assign,  as  a  breach  of  the  condition,  that  the  defendant  did  not 
owe  the  debt  for  which  the  attachment  was  sued  out ;  he  must  set 
forth  the  proceedings  under  the  attachment,  and  show  that  a 
judgment  was  given  against  him,  and  his  property  used  to  satisfy 
it ;  that  he  did  not  owe  the  debt ;  and  that  the  attachment  and 
judgment  were  illegal.^ 

§  172.  Where  the  cases  in  which  an  original  attachment  may 
issue  are  difTcrent  from  those  authorizing  an  auxiliary  or  ancil- 
lary attachment,  —  a  writ  taken  out  in  aid  of  a  pending  suit  insti- 
tuted by  summons,  —  and  the  plaintiff  in  an  original  attachment 
is  sued  on  his  bond,  he  cannot,  as  a  defence  thereto,  show  that, 
when  he  obtained  the  attachment,  facts  existed  which,  under  the 
law,  would  have  justified  an  ancillary  attachment.^ 

§  173.  Wlicre  an  attaching  plaintiff  complies  with  all  the  re- 
quirements of  the  law  in  procuring  an  attachment,  the  presump- 
tion is,  that  it  is  rightfully  sued  out ;  and,  if  the  defendant,  in  an 
action  on  the  bond,  claims  that  it  was  wrongfully  done,  the  burden 
is  upon  him  to  establish  that  fact.  Not  that  he  must  necessarily 
do  it  by  positive  testimony ;  but  it  may  be  shown  by  proof  of 
such  facts  and  circumstances  as  tend  to  establish  the  wrongful 
character  of  the  act.^  Tlic  failure  of  the  attaching  plaintiff  to 
sustain  his  action,  is  undoubtedly  j!9riw^ /aciie  evidence  in  support 
of  the  defendant's  action  on  the  bond  ;  but  it  is  not  conclusive 
proof  that  the  attachment  was  either  wrongfully  obtained,  in  the 
sense  of  being  merely  obtained  without  sufficient  cause,  though 
without  malice,*  or  that  the  attachment  plaintiff  acted  wilfully 
wrong,  that  is  maliciously,  in  suing  it  out.^  The  latter  position 
will  undoubtedly  hold  good  in  all  cases,  without  regard  to  the 
particular  manner  in  which  the  attachment  suit  was  terminated 
in  favor  of  the  defendant;  but  it  is  deemed  quite  as  certain,  that,  in 
an  action  in  the  former  class  of  cases,  where  malice  is  not  involved, 
and  only  the  wrong  of  the  attachment  is  to  be  established,  if  the 

1  Hoshaw  v.  Hoshaw,  8  Blackford,  258. 

2  Reynolds  ik  Culbreath,  14  Alabama,  581. 

8  Veiths  V.  Hagse,  8  Iowa,  163;  Burrows  v.  LehndorfF,  Ibid.  96. 

*  Sackett  v.  McCord,  23  Alabama,  851. 

*  Raver  v.  Webster,  3  Iowa,  502. 

[112] 


CHAP.  \l]  ATTACHMENT  BONDS.  8  175 

suit  teas  terminated  hy  a  finding  in  favor  of  the  defendant,  on  an 
issue  as  to  the  truth  of  the  facts  alleged  as  the  ground  for  the  attach- 
ment, then  the  judgment  would  conclusively  establish  that  the 
attachment  was  wrongfully  obtained.^ 

But  so  far  as  the  amount  of  the  claim  of  the  attachment  plain- 
tiff is  involved  in  the  question  of  the  defendant's  recourse  upon 
the  bond,  the  judgment  in  the  attachment  suit  is  conclusive ;  and 
if  that  be  for  a  less  sum  than  the  law  allows  an  attachment  to  issue 
for,  it  is  complete  evidence  that  the  attachment  was  wrongfully 
obtained ;  though  it  does  not  settle  the  question  of  wilful  wrong 
on  the  part  of  the  attachment  plaintiff.^ 

§  173  a.  In  an  action  on  the  bond  it  is  no  defence,  that  the  re- 
turn on  the  attachment  does  not  show  a  levy  made  according  to 
the  statute,  if  a  levy  de  facto  was  made.  Nor  is  it  a  justification, 
or  mitigation  of  damages,  that  the  claim  sued  on  was  a  just  one, 
where  the  statutory  ground  for  suing  out  the  attachment  did  not 
exist;  for  the  claim,  may  be  just,  and  yet  the  attachment  wrongful, 
and  even  wilfully  wrong.^ 

§  174.  In  an  action  on  the  bond,  the  attachment  plaintiff  cannot 
excilse  himself,  because,  in  obtaining  the  attachment,  he  acted  in 
good  faith  ;  *  nor  is  the  matter  of  probable  cause  involved,  except 
in  relation  to  tlie  question  of  damages ;  and  no  belief  of  the  at- 
tachment plaintiff,  however  firm  and  sincere,  that  he  had  good 
ground  for  obtaining  the  attachment,  can  affect  the  defendant's 
right  to  recover  against  him  the  actual  damage  he  has  sustained.^ 

§  175.  "What  is  this  actual  damage  ?  On  general  principles  it 
must  be  the  natural,  proximate,  legal  result  or  consequence  of  the 
wrongful  act.  Remote  or  speculative  damages,  such,  for  instance, 
as  result  from  injuries  to  credit,  business,  character,  or  feelings, 
cannot  be  recovered.^     Actual  damage  may  be  properly  compre- 

1  Mitchell  V.  Mattingly,  1  Metcalfe  (Ky.),  237. 

2  Gaddis  V.  Lord,  10  Iowa,  141.     See  post  §  744. 
8  Drumniond  v.  Stewart,  8  Iowa,  341. 

*  Churchill  r.  Abraham,  22  Illinois,  455. 

5  Alexander  r.  Hutchison,  9  Alabama,  825  ;  DonncU  v.  Jones,  13  Ibid.  490 ;  Pettit 
V.  Mercer,  8  B.  Monroe,  51.     Sed  contra,  Mahnke  v.  Damon,  3  Iowa,  107. 

•*  Donnell  i-.  Jones,  13  Alabama,  490;  Rcidhar  v.  Berger,  8  B.  Monroe,  160;  State 
V.  Thomas,  19  Missouri,  613 ;  Flovd  v.  Hamilton,  33  Alabama,  235 ;  Campbell  v. 
Chamberlain,  10  Iowa,  337. 

8  [113] 


§  177  ATTACHMENT  BONDS.  [cHAP.  VL 

hended  under  two  heads, —  1.  Expense  and  losses  incurred  by  the 
party  in  making  his  defence  to  the  attachment  proceedings ;  and 
2.  The  loss  occasioned  by  his  being  deprived  of  the  use  of  his 
property  during  the  pendency  of  the  attachment,  or  by  an  illegal 
sale  of  it,  or  by  injury  thereto,  or  loss  or  destruction  thereof.^ 
For  losses  and  trouble  of  tliese  descriptions,  the  attachment  de- 
fendant should  be  liberally  remunerated.'^ 

§  176.  Under  the  first  head,  "will  be  allowed  expenses  incurred 
in  obtaining  testimony  on  a  trial  —  where  such  is  by  law  author- 
ized —  of  the  truth  of  the  affidavit  on  which  tlie  attachment  was 
issued  ;  ^  costs  of  suit  to  which  the  defendant  has  been  subjected ;  ^ 
as  well  in  an  appellate  court,  as  in  that  in  which  the  suit  was 
brought ;  ^  and  fees  paid  to  counsel  for  services  in  the  attachment 
suit ;  '^  but  not  fees  to  counsel  for  services  in  the  action  for  dam- 
ages." Where  the  attachment  is  not  the  original  process,  but  is 
ancillary  to  an  action  instituted  by  summons,  no  costs  connected 
with  the  defence  of  the  suit,  in  aid  of  which  the  attachment  was 
obtained,  can  be  recovered.^  When  it  is  sought  to  recover  for 
counsel  fees  in  defending  the  attachment,  it  is  held,  in  Kentucky, 
that  no  recovery  can  be  had  unless  the  fees  were  paid,  or  con- 
tracted to  be  paid,  and  are  proved  to  be  reasonable.^ 

§  177.  The  rule  of  damages  under  the  second  head  has  been 
variously  laid  down.  In  New  York,  it  was  said  by  the  Supreme 
Court :  "  The  plaintiff  is  entitled  to  such  damages  as  a  jury  may 
think  he  has  sustained  by  the  wrongful  seizing  and  detaining  of 
his  property.  If  it  was  taken  out  of  his  possession,  he  may  be 
entitled  to  the  value  of  it ;  if  seized  and  left  in  his  possession,  to 

1  Cox  V.  Robinson,  2  Eobinson  (La.),  313  ;  Horn  v.  Bayard,  11  Ibid.  259 ;  Pettit  v. 
Mercer,  8  B.  ^Monroe,  51 ;  Reidhar  v.  Berber,  Ibid.  160. 

2  Offutt  I'.  Edwards,  9  Robinson  (La.),  90;  Campbell  v.  Chamberlain,  10  Iowa,  337. 
8  Hayden  v.  Sample,  10  Missouri,  215. 

*  Dunning  v.  Humphrey,  24  Wendell,  31 ;  Winsor  v.  Orcutt,  11  Paige,  578;  Trap- 
nail  r.  McAfee,  3  Metcalfe  (Ky.),  34. 

6  Bennett  v.  Brown,  31  Barbour,  158;  s.  c.  20  New  York,  99. 

6  Offutt  V.  Edwards,  9  Robinson  (La.),  90;  Littlejohn  v.  Wilcox,  2  Louisiana  An- 
nual, 620 ;  Phelps  v.  Coggeshall,  13  Ibid.  440  ;  Accessory  Transit  Co.  v.  McCerren, 
Ibid.  214;  Trapnall  u.  McAfee,  3  Metcalfe  (Ky.),  34;  Seay  v.  Greenwood,  21  Ala- 
bama, 491 ;  Morris  v.  Price,  2  Blackford,  457.  Sed  contra,  Heath  v.  Lent,  1  Califor 
nia,  410. 

■?  Offtitt  V.  Edwards,  9  Robinson  (La.),  90. 

8  White  V.  Wyley,  17  Alabama,  167. 

«  Shultz  V.  Morrison,  3  Metcalfe  (Ky.),  98. 
[114] 


CHAP.  VI.]  ATTACHMENT   BONDS. 


§180 


such  damages  as  may  be  awarded  for  the  unlawful  intermeddling 
with  his  property."!  But  the  same  court  afterwards  held,  that 
no  more  than  nominal  damages  can  be  recovered,  where  the  de- 
fendant is  not  dispossessed.^ 

§  178.   In  Kentucky,  it  was  determined  that  the  plaintiff  can 
only  recover  damages  for  the  injury  he  has  sustained  by  being 
deprived  of  the  use  of  his  property,  or  its  loss,  destruction,  or  de- 
terioration.8     Subsequently,  the  court   stated   the  rule  on  some 
points  more  specifically,  and  said  :  "  The  inquiry  in  regard  to  the 
injury  wliich  the  party  may  sustain  by  the  deprivation  of  the  use 
of  his  property,  should  be  limited  to  the  actual  value  of  the  use  : 
as,  for  example,  the  rent  of  real  estate,  the  hire  or  services  of 
slaves,  or  the  value  of  the  use  of  any  other  species  of  property  ia 
itself  productive.     The  property  in  this  case  was  not  of  that  char- 
acter, and  the  injury  from  being  deprived  of  its  use  should  be 
restricted  to  the  interest  on  the  value  thereof.     For  any  injury 
beyond  that,  the  damages  would  be  conjectural,  indefinite,  and 
uncertain,  and  the  plaintiff  cannot  recover  in  this  action.     If 
however,  the  property  is  damaged,  or  if  when  returned  it  should 
be  of  less  value  than  when  seized,  in  consequence  of  the  deprecia-  - 
tion  in  price,  or  from  any  other  cause,  for  such  difference  the 
plaintiff  would  be  entitled  to  recover.     But  this  rule,  so  far  as  it 
relates  to  the  fall  or  depreciation  of  the  price,  would  not  be  appli- 
cable to  every  species  of  property.     It  would,  however,  clearly 
apply  in  this  case,  as  it  was  the  trade  and  business  of  the  party  to 
vend  the  goods  attached,  and  not  to  keep  them  for  mere  use."  * 

§  179.  The  court  properly  intimated,  in  the  language  just 
quoted,  that  the  allowance  for  depreciation  in  the  value  of  the 
property  while  under  attachment  would  not  be  applicable  to  every 
species  of  property.  For  instance,  if  real  estate  be  attached, 
without  interfering  with  the  defendant's  possession,  nothing  can 
be  recovered  in  an  action  on  the  bond,  on  account  of  depreciation 
in  its  value  during  the  pendency  of  the  attachment.^ 

§  180.   In  Louisiana,  the  following  case  arose.     Certain  parties 

1  Dunning  y.  Humphrey,  24  "Wendell,  31.    *  Reidhar  v.  Berger,  8  B.  Monroe,  160. 

2  Groat  V.  Gillespie,  25  Wendell,  383.  6  Heath  v.  Lent,  1  California,  410. 
*  J'ettit  V.  Mercer  8  B.  Monroe,  51. 

[115] 


§  183  ATTACHMENT   BONDS.  [cilAr.  VI 

took  out  an  attachment  in  February,  1842,  against  the  Girard 
Bank,  and  seized  certain  cJioses  in  action,  which,  at  the  time,  and 
for  some  months  after,  were  worth  in  New  Orleans  818,500.  In 
August,  1842,  the  attachment  phiintiffs,  having  obtained  judgment, 
caused  the  choses  In  action  to  be  sold  by  the  sheriff,  at  a  great 
sacrifice,  for  the  sum  of  89,140.  Afterwards,  the  judgment  was 
reversed,  and  the  assignees  of  the  bank  sued  the  attachment 
plaintiffs  for  the  difference  between  these  sums,  and  recovered 
judgment  for  85,145  damages.  Whether  the  suit  was  on  the 
attachment  bond,  docs  not  appear  in  the  report  of  the  case.  The 
Supreme  Court  affirmed  the  judgment,  holding  the  plaintiffs  enti- 
tled to  recover  the  actual  damage  sustained.^ 

§  181.  In  New  York,  an  action  was  brought  on  an  attachment 
bond,  whore  it  ai)poarod  that  the  plaintiff"  in  the  attachment  was 
nonsuited  ;  but  immediately  after  sued  out  another  attachment, 
and  seized  the  same  property  that  was  attached  in  the  first  suit ; 
and  afterwards,  on  obtaining  jntlgment,  caused  the  proj)erty  to  be 
sold  under  his  execution.  It  was  held,  that  the  application  of 
the  defendant's  property  to  the  satisfaction  of  the  judgment  in 
the  second  suit,  was  properly  admissible  in  evidence,  to  reduce  the 
amount  of  damages  sought  to  be  recovered.^ 

§  182.  The  liability  of  an  attachment  plaintiff"  for  actual  dam- 
age exists  as  well  where  the  attachment  is  sued  out  by  his  attor- 
ney as  wdiere  he  obtains  it  himself ;  but  no  malice  exhibited  by 
the  attorney  in  his  proceedings  can  be  given  in  evidence  against 
his  client,  so  as  to  make  him  liable  for  exemplary  damages.^  And 
where  the  attachment  was  taken  out  by  an  agent,  who  also  exe- 
cuted the  bond,  the  declaration  on  tlie  bond  was  held  to  be  insuf- 
ficient, which  charged  that  the  attachment  was  wrongfully  and 
vexatiously  sued  out  by  the  obligors  in  the  bond :  it  should  have 
averred  that  it  was  so  sued  out  by  the  plaintiff.* 

§  183.  An  administrator  who  sues  out  an  attachment  and  exe- 
cutes the  bond,  describing  himself  therein  as  admhiistrator,  cannot 

1  Horn  V.  Bayard,  11  Robinson  (La.),  259. 

2  Earl  V.  Spooner,  3  Denio,  246. 

8  Kirksey  i'.  Jones,  7  Alabama,  622;  McCollough  v.  Walton,  11  Ibid.  492. 
«  McCuliough  V.  Walton,  11  Alabama,  492. 
[116] 


CHAP.  Yl-I  ATTACHMENT  BONDS.  §  183 

be  sued  on  the  bond  in  his  representative  character,  nor  can  he 
subject  the  estate  to  an  action  for  damages  by  his  tortious  conduct. 
He  is  liable  to  respond  personally  for  the  injury,  and  is  properly 
sued  in  his  individual  character.^ 

1  Gilmer  v.  Wier,  8  Alabama,  72. 

[117] 


§  ISo  EXF.CITTION    AND   RKTLKN   OF   ATTACUMENT.        [CHAl'.  Vll 

CHAPTER  VII. 

EXECUTION  AND  RETURN  OF  AN  ATTACHMENT, 

§  183  a.  When  a  writ  of  :itt:irlinu"iii  is  pliieoJ  in  the  liands  of 
an  ofTicer  to  bo  executed,  his  first  duty  —  and  one  wliieh  he  can- 
not ever  safely  overlook  —  is,  to  ascertain  that  it  was  issued  hy  an 
officer  having  legal  power  to  issue  it ;  for  if  issued  by  one  liaving 
no  such  power,  it  is  absolutely  void,  an<l  will  alToid  no  pruttHtiun 
whatever  to  him  who  acts  under  it.^ 

§  184.  The  officdh-  should  also  see  that  the  writ  is  substantially 
legal  in  form ;  for  if  defective  in  this  respect,  a  levy  under  it  may 
be  inoperative.  Thus,  where  an  attachment  was  made  on  the  28th 
of  December,  1822,  under  a  writ  dated  the  28th  of  February, 
1822,  and  returnable  to  the  next  May  Term  of  the  court  after  its 
date ;  and  trover  was  brought  against  the  officer  fur  the  j)roi)erty ; 
it  was  held,  that  the  officer  should  not  be  permitted  to  prove  that 
the  writ  was  in  fact  sued  out  on  the  28th  of  December,  1822,  and 
was  intended  to  be  made  returnable  at  May  Term,  1823,  but  the 
word  "February"  had  been  inserted  by  mistake,  instead  of  "De- 
cember "  ;  and  that,  as  the  writ  was  made  returnable  at  May 
Term,  1822,  and  then  became  funttus  officio,  nothing  could  bo 
done  under  it  in  December,  1822.^^ 

§  185.  If  the  writ  be  in  legal  form,  and  issued  out  of  a  court 
having  competent  jurisdiction,  it  will  be  a  complete  justification 
to  the  officer  in  attaching  the  defendant's  property,  and  in  using, 
to  effect  the  attachment,  all  necessary  force ;  and  there  can,  there- 
fore, be  no  obligation  on  him  to  investigate  whether  the  prelimi- 
nary steps  required  for  obtaining  it  have  been  pursued.^     Nor  has 

1  Morrison  v.  Lovejoy,  6  Minnesota,  183.;  Guerin  v.  Hunt,  8  Ibid.  477. 

2  Dame  v.  Fales,  3  New  Hamp.  70. 

8  Fulton  V.  Heaton,  1  Barbour,  552;  Kirksey  v.  Dubose,  19  Alabama,  43;  Banta  v. 
Reynolds,  3  B.  Monroe,  80;  Garnet  v.  "Wimp,  Ibid.  360;  Ela  v.  Shepard,  32  New 
Hamp.  277 ;  Owens  v.  Starr,  2  Littell,  230;  Lovicr  v.  Gilpin,  6  Dana,.321  ;  Walker  v. 
Woods,  15  California,  66;  Booth  v.  Rees,  26  Illinois,  45;  State  v.  Foster,  10  Iowa, 
435. 

[118] 


CHAP.  VII.]        EXECUTION   AND   RETURN   OF   ATTACHMENT.  §  187  a 

he  anything  to  do  with  the  question  whether  the  debt  is  actually 
due.  It  may  be  that  no  cause  of  action  exists  ;  but  with  that  he 
has  no  concern ;  for.  it  is  not  his  province  to  decide  the  question 
of  liability  between  the  parties. ^ 

§  ISO.  If  a  writ  of  attachment  be  placed  in  the  hands  of  a  per- 
son specially  deputed  to  serve  it,  he  has  all  the  powers  which  may 
be  exercised  by  a  sheriff  in  the  premises,  but  he  is  not  entitled  of 
right  to  be  recognized  or  obeyed  as  a  sheriff,  or  known  officer,  but 
must  show  his  authority,  and  make  known  his  business,  if  re- 
quired by  the  party  who  is  to  obey  that  authority.  In  this  partic- 
ular he  represents  a  special  bailiff,  rather  than  a  known  officer. 
It  has  been  held,  therefore,  that  a  person  so  deputed  may,  equally 
with  a  sheriff,  break  into  a  warehouse  to  get  access  to  goods, 
where  admittance  is  refused  him.- 

§  187.  An  attachment  comes  within  the  terms  of  a  statute  for- 
bidding the  service  on  Sunday  of  any  "  writ,  process,  order,  war- 
rant, judgment,  or  decree  "  ;  and  a  service  of  it  on  that  day  will 
be  set  aside  on  motion  ;  but  cannot  be  reached  by  a  plea  in  abate- 
ment.8  ]>,it  where  there  is  no  prohibitory  statute,  it  may  be  exe- 
cutecl  on  tliat  day.*  If  a  writ  of  attachment  be  delivered  to  an 
officer  on  Sunday,  he  is  not  to  be  regarded  as  having  officially 
received  it,  nor  can  he  be  held  responsible  for  n(^t  executing  it,  on 
that  day.  He  may,  if  he  choose,  recognize  the  receipt  of  it,  but 
that  will  impose  on  him  no  higher  or  other  duties,  than  if  he  had 
received  it  on  the  next  day.^  In  England  it  is  said  that  Christmas 
is  considered  a  dies  non  juridicus  ;  but  it  was  held  not  so  in  this 
country.^ 

§  187  a.  The  authority  of  an  officer  to  levy  an  attachment  con- 
tinues until  the  return  day  of  the  writ,  or  until  he  has  actually 
returned  it,  if  he  do  so  before  that  day.  The  fact  that  before  the 
return  day  he  indorsed  on  the  writ  a  return  of  "  no  proucrty 
found,"  but  kept  the  writ  in  his  hands,  will  not  prevent  his  subse- 

1  Livingston  v.  Smith,  5  Peters,  90;  Walker  r.  Woods,  15  California,  66;  Mam- 
lock  V.  White,  20  Ibid.  598. 

-  Burton  c.  Wilkinson,  18  Vermont,  186. 
»  Cotton  V.  Huey,  4  Alabama,  56. 
*  Matthews  V.  Anslev,  31  Alabama,  20. 

6  Whitnev  V.  Butterfield,  13  California,  335.    «  Starke  v.  Marshall,  3  Alabama,  44. 

[119] 


§  189  a  EXECUTION   AND   KKllRN   OF   ATTACHMENT.        [clIAP.  VU. 

queiitly  levying  it,  and  making  ivturn  of  the  levy,  at  any  time 
belbro  the  leturu  duy.^ 

§  188.  It  is  the  duty  of  an  officer,  on  receiving  a  writ  of  attach- 
ment, to  levy  it  on  any  property  of  the  defendant  he  can  find,  of 
tlie  description  recited  in  the  writ.  It  is  never  discretionary  with 
him,  if  he  finds  such  property,  whether  to  execute  the  writ  or  not; 
nor  is  he  allowed  to  provide  for  tlie  plaintilT  another  renuMly  than 
that  atforded  by  the  writ,  for  tlie  collection  of  his  debt.  He  must 
take  the  property  into  the  custody  of  the  law.  Any  agreement  to 
induce  him  to  on)it  the  j)erformance  of  his  duty  is  void,  upou 
considerations  of  public  policy.  Thus,  where  an  officer,  having  a 
writ  of  attachment  in  his  hands,  was  induced  to  forbear  levying 
it,  by  the  defendant's  executing  a  bond  in  favor  of  the  plaintiCf, 
with  security,  conditioned  to  save  the  officer  harndess  by  reason 
of  his  not  proceeding  to  attach  property,  and  to  pay  whatever 
judgment  might  be  rendered  against  the  defendant ;  and  the  plain- 
till"  afterwards  recovered  jud<::inent  in  the  attachment  suit,  and,  fail- 
ing to  make  the  money  therein,  sued  upon  the  bond  ;  it  was  held, 
that  no  action  could  be  maintauicd  on  it,  and  that  it  was  not  such 
a  security  as  the  plaintiff,  by  adopting,  could  render  valid.- 

§  189.  To  ascertain  who  is  the  actual  owner  of  personal  prop- 
erty, notwithstanding  the  indication  arising  from  acts  of  owner- 
ship, is  often  attended  with  difficulty  ;  and  an  officer  ought  not  to 
be  huUlcn  to  proceed  to  make  an  attaclimcnt,  without  an  indem- 
nity, where  there  is  great  danger  of  his  committing  a  trespass  in  so 
doing ;  and  where  he  has  good  reason  to  doubt  whether  goods  are 
the  property  of  the  defendant,  he  may  insist  on  the  plaintiff's 
showing  them  to  him,  and  also  on  being  indemnified.^ 

§  189  a.  When  an  officer  takes  a  writ,  with  directions  to  serve 
it  in  a  particular  manner,  without  requiring  of  the  plaintiff  an  in- 
demnity, ho  is  bound  to  serve  it,  if  he  can,  according  to  the  in- 
structions ;  and  it  is  not  a  sufficient  excuse  for  him  that  he  subse- 
quently obtained  information  which  led  him  to  suppose  that  a 

1  Courtney  v.  Carr,  6  Iowa,  238. 

2  Cole  V.  Parker,  7  Iowa,  167  ;  Denson  v.  Sledge,  2  Devereux,  136. 

8  Bond  V.  Ward,  7  Mass.  123 ;  Sibley  v.  Brown,  15  Maine,  185 ;  Ranlett  r.  Blodgett, 
17  New  Ilanip.  298;  Smithy.  Cicottc,  11  Michigan,  383 ;  Chamberlain  v.  Beller,  18 
New  York,  115 ;  Shrivcr  v.  Harbaugh,  37  Penn.  State,  399. 
[120] 


CHAP.  Vn.]   EXECUTION  AKD  RETURN  OF  ATTACHMENT. 


190 


service  in  the  manner  directed  would  be  ineffectual  for  tlie  inter- 
ests of  tlic  plaintiflf,  and  even  expose  himself  to  an  action,  if  his 
supposition  was  erroneous,  and  a  service  in  the  manner  directed 
would,  in  fact,  have  been  legal  and  effectual.  He  is  liable  unless 
he  can  show  that  he  could  not  lawfully  have  obeyed  the  direc- 
tions.^ • 

§  190.  The  officer  is  bound  to  attach  sufficient  property,  if  it 
can  be  found,  to  secure  the  amount  of  the  plaintiff's  claim,  as 
stated  in  the  writ,  and  failing  in  this  he  will  be  liable  for  any  defi- 
ciency.2  ^Vhere,  therefore,  an  officer  levied  three  attachments 
successively  on  a  defendant's  personal  property,  and,  having 
received  a  fourth  writ,  levied  it  on  his  real  estate,  the  proceeds  of 
which  were  absorbed  in  satisfying  that  writ,  and  it  was  afterwards 
ascertained  that  the  personalty  on  which  the  preceding  three  writs 
were  levied  was  not  sufficient  to  satisfy  them ;  it  was  held,  that 
the  officer  was  liable  for  the  deficiency ;  that  he  might  have  levied 
all  the  writs  on  all  the  jn-oiicrty  ;  that  he  was  bound  at  his  peril, 
if  he  did  not  levy  on  all,  to  levy  on  enough  to  satisfy  the  demands ; 
and  that  he  was  not  excused  by  the  fact  that  an  appraisement  of 
the  personalty,  made  after  the  levy,  indicated  an  amount  sufficient 
for  tliat  purpose.^  If  in  such  case  an  officer  represent  to  the 
plaintiir  that  he  made  an  attachment,  when  in  point  of  fact  he  did 
not,  and  thereby  induce  the  plaintiff  to  rely  upon  it,  and  to  forego 
making  any  further  attachment,  when  he  might  have  done  so,  the 
officer  is  hound  by  his  representation,  and  when  sued  by  the  plain- 
tiff for  failing  to  attach  sufficient  property,  is  estopped  from  show- 
ing that  in  fact  he  mad<'  no  legal  attachment.*  But 'if,  by  a  mis- 
take of  the  plaintiff  in  making  out  the  writ,  the  amount  which  the 

1  Ranlctt  V.  Blodgctt,  1 7  New  llamp.  298. 

2  In  FiUKcrald  r.  Blake.  42  Barl>our,  51.3,  the  Supreme  Coart  of  New  York  used  the 
following  lan-uapc :  "  It  is  the  duty  of  the  sheriff  to  attach  so  much  of  the  property 
of  the  dcfcndruit  a-s  will  Ijc  sufficient  to  satisfy  the  plaintiff's  demand,  with  costs  and 
cx[H.-nscs.  In  this  ca-^e  the  sheriff  has  levied  on  so  much  as  he  considered  sufficient. 
The  extent  of  the  seizure  was  within  the  exercise  of  a  sound  discretion  by  the  sheriff. 
If  his  levy  was  excessive,  the  defendant  mi-ht  complain ;  and  if  insufficient,  the  plain- 
tiff He  'is  resiHjn>ible  to  both  parties  for  the  exercise  of  a  sound  and  reasonable  discre- 
tion in  pi-rfom.in^'  his  dutv.  The  plaintiff  ha.s  no  authority  to  dictate  the  extent  of  the 
lew  anv  more  than  the  defendant  has  to  limit  it.  The  plaintiff  can  point  out  property 
to  the  sheriff,  and  require  a  levy  upon  so  much  as  will  be  sufficient,  but  the  sheriff  must 
decide  for  himself,  uj^.n  the  responsibility  which  attaches  to  his  office,  as  to  the  extent 
and  sufficiency  of  the  seizure." 

3  Ransom  r.  Ilalcott,  18  Barbour,  56. 

*  Howes  F.  Spicer,  23  Vermont,  508.  fl  911 


§  101  a  EXECUTION  AND  RETURN  OF  ATTACHMENT.    [ciIAl'.  VII. 

slieriff  is  required  to  secure  is  less  than  the  debt  sued  on,  and  the 
sheriff  receive  from  the  defendant  a  sum  of  money  equal  U)  the 
amount  named  in  tlic  writ  and  costs,  and  release  property  attached 
by  him,  which  was  of  sufficient  value  to  have  secured  the  whole 
debt;  the  sheriff  will  not  be  held  responsible  for  the  difference 
between  the  amount  paid  him  and  that  of  the  jud<,anent  recovered 
by  the  attachment  plaintiff;  for  he  was  misled  by  the  mistake  of 
the  plaintiff  himself.^ 

§  191.  It  is  the  duty  of  the  officer  to  execute  the  writ  as  soon 
as  he  reasonably  can  after  it  comes  into  his  hands;  for  if  by  his 
unnecessary  delay  in  sei/.iiij,'  property  or  sununoning  garnishees 
the  plaintiff  loses  his  debt,  the  officer  will  be  liable  ;  and  his  lia- 
bility will  not  be  avoided  by  his  showing  that  he  was  not  specially 
required  to  serve  the  writ  immediately,  or  tliat  it  was  in  fact 
served  within  the  time  authorized  by  its  terms.^  And  after  the 
attachment  is  begun,  it  should  be  continued  with  as  little  interrup- 
tion as  possible.  Delay  or  interruption  in  the  discharge  of  this 
duty  may  involve  the  officer  in  serious  consequences.  No  general 
rule  governing  such  cases  can  well  be  laid  down  ;  but  each  case 
must  depend  very  much  on  its  particular  circumstances.  As  a 
proposition  generally  applicable,  however,  it  may  be  said  that  the 
officer  should  take  care  that  his  levy  be  a  continuous  and  single 
act,  as  contradistinguished  from  a  number  of  distinct  acts,  per- 
formed at  different  times,  and  not  in  reasonable  and  necessary 
connection. 

§  191  a.  While  the  law  holds  an  officer  to  a  strict  performance 
of  his  duty  in  the  execution  of  process  placed  in  his  hands,  and 
tolerates  no  wanton  disregard  of  that  duty,  nor  sanctions  any  neg- 
ligence, yet  it  requires  no  impossibilities,  nor  does  it  impose 
unconscionable  exactions.  When  an  attachment  comes  to  his 
hands,  he  must  execute  it  with  all  reasonable  celerity ;  but  he  is 
not  held  to  the  duty  of  starting,  on  the  instant  after  receiving  it, 
to  execute  it,  without  regard  to  other  business  demanding  his 
attention,  unless  some  special  reasons  for  urgency  exist,  and  are 
made  known  to  him.  Reasonable  diligence  is  all  that  is  required 
of  him  in  such  a  case;  and  what  is  reasonable  diligence  depends 
upon  the  particular  facts  of  the  case.     If,  for  example,  an  officer 

1  Page  V.  Belt,  17  Missouri,  263.  ^  Kennedy  v.  Brent,  6  Cranch,  187. 

°[122] 


CHAP.  VII.]        EXECUTION   AND   RETURN   OF   ATTACHMENT.  §  192 

receives  no  special  instruction  to  execute  a  writ  at  once,  and  there 
is  no  apparent  necessity  for  its  immediate  execution,  it  wx)uld  not 
be  contended  that  he  was  under  the  same  obligation  to  execute  it 
instantaneously  as  if  he  were  so  instructed,  or  there  were  apparent 
circumstances  of  urgency.  But  in  the  case  of  an  attachment  sued 
out  on  the  ground  of  the  defendant's  fraud,  or  his  being  in  the 
act  of  leaving  the  State,  or  removing  his  property,  the  very  fact 
of  the  issue  of  the  writ  on  such  ground,  would  seem  to  indicate 
to  the  oHicer  the  necessity  for  immediate  action.  These  views 
were  applied,  in  California,  to  a  case  where  a  writ  was  placed  in 
the  hands  of  a  sheriff  between  nine  and  ten  o'clock  on  a  Sunday 
night,  and  another  writ  was  delivered  to  a  deputy  of  his,  at  fifteen 
minutes  after  twelve  o'clock,  and  was  executed  by  the  deputy  at 
one  o'clock  on  Monday  morning ;  of  which  second  writ  the  sheriff 
had  no  knowledge  until  after  it  was  executed ;  and  the  service  by 
the  deputy  lield  the  property  in  favor  of  the  second  attachment. 
The  plaintiff  in  the  first  attachment  sued  the  sheriff  for  not  levy- 
ing it  in  due  time  ;  but  it  was  held,  that  the  attachment  was  not 
legally  in  his  hands  until  the  expiration  of  Sunday,  and  that  his 
delay  in  executing  it,  for  one  hour  after  midnight,  did  not  entitle 
the  plaintiff  to  recover.^ 

§  101  h.  It  not  unfrequently  happens  that  no  property  is  found 
whereon  to  levy  an  attachment,  and  the  action  proceeds  to  judg- 
ment under  the  summons.  In  such  case  the  rendition  of  the 
judgment  supersedes  the  attachment,  and  thereafter  no  action  can 
be  taken  under  it.^ 

§  102.  "Where  a  variety  of  articles  are  attached,  and  it  requires 
considerable 'time  to  complete  the  service  of  the  process,  if  the 
officer,  after  he  has  begun  it,  continues  in  it  with  no  unnecessary 
delay,  until  he  has  secured  all  the  goods,  the  taking  is  to  be 
treated  as  one  act.  But  where  an  officer  took  and  removed  sun- 
dry finished  carriages,  to  an  amount  which  he  deemed  siifficient 
to  secure  the  demand  in  the  writ,  and,  on  the  day  following,  hav- 
ing changed  his  mind  in  regard  to  some  of  the  property,  he  deter- 
mined not  to  take  away  a  part  of  the  finished  carriages  he  had 
attached,  but,  in  lieu  thereof,  to  make  another  attachment  of  un- 

1  Whitney  v.  Butterficld,  13  California,  3.35. 
s  Scheib  r.  Baldwin,  22  Howard  Pract.  R.  278. 

[1231 


§  193  EXECUTION   AND   RETURN  OF   ATTAOTMENT.        [CIIAP.  \1I. 

finished  work,  which  ho  did,  and  then  removed  the  unfinished 
work,  witli  part  of  that  first  attached  ;  it  was  held,  that  the  attach- 
ment might  properly  he  considered  as  consisting  of  two  distinct 
acts.^ 

§  193.  An  attachment  effected  by  unlawful  or  fraudulent  means 
is  illegal  and  void.  Such,  for  example,  is  the  case  of  entering  a 
dwelling-house  against  the  owner's  will,  and  attaching  his  proi)orty 
there  ;  to  which  more  particular  reference  will  presently  be  made.- 
Such,  too,  is  the  case  of  a  plnintiff  fraudulently  obtaining  posses- 
sion, in  one  State,  of  the  property  of  his  debtor,  and  removing  it 
clandestinely  into  another  State,  and  there  attaching  it.^  So,  like- 
wise, where  the  plaintiff  decoyed  a  slave  from  one  State  into  an- 
other, for  the  purpose  of  attaching  him  for  the  debt  of  his  owner.* 
And  so,  where  the  officer  watched  the  defendant  at  work  in  his 
field,  where  he  might  have  served  the  writ  upon  him,  but  did  not 
do  60,  and  waited  till. the  plaintifT's  agent  enticed  the  defendant 
out  of  the  State,  and  then  attached  the  defendant's  real  estate, 
"  for  want  of  his  body,  goods,  and  chattels."  ^  So,  where  a  suit 
by  attachment  was  brought  in  the  United  States  Circuit  Court 
for  Louisiana,  against  one  alleged  to  be  a  citizen  of  that  State,  and 
property  was  levied  on  in  the  interior  of  the  State  and  brought 
to  New  Orleans  ;  and  the  plaintiff  then  dismissed  that  suit,  and 
brought  another  in  the  State  court,  on  the  ground  that  the  de- 
fendant was  a  non-resident  of  that  State,  and  levied  the  attach- 
ment on  the  same  property ;  the  court  set  aside  the  attachment, 
on  the  ground  that  a  levy  brought  about  by  such  means  could  not 
be  sustained.^  So,  where  a  shcrifT,  in  a  county  where  he  was  not 
an  officer,  took  property,  under  pretence  of  having  a  writ,  and  car- 
ried it  to  another  county,  in  order  to  bring  it  within  the  reach  of 
legal  process."^  And  so  where,  on  the  suggestion  of  the  counsel  for 
the  attachment  plaintiff,  a  trunk  was  produced  and  opened,  under 
cover  and  pretence  of  a  criminal  examination  then  progressing, 
but  really  for  the  purpose  of  levying  an  attachment  upon  money 

1  Bishop  V.  "Warner,  19  Conn.  460. 

2  Post,  §  200.* 

8  rowell  V.  McKee,  4  Louisiana  Annual,  108  ;  Paradise  v.  Fanners  and  Merchants' 
Bank,  5  Ibid.  710;  Wingate  i-.  Wheat,  6  Ibid.  238;  Myers  v.  Myers,  8  Ibid.  369. 
*  Timmons  v.  Garrison,  4  Humphreys,  148. 
6  Nason  v.  Estcn,  2  Rhode  Island,  337 ;  Metcalf  v.  Clark,  41  Barbour,  45. 

6  Gilbert  v.  Holiinger,  14  Louisiana  Annual,  441. 

7  Pomroy  v.  Parmlee,  9  Iowa,  140. 

[124] 


CHAP.  Vll]        EXECUTION   AND   RETURN   OF   ATTACmiENT.  §  194 

contained  in  it.^  While,  however,  the  law  will  annul  every  attach- 
ment obtained  by  unlawful  or  fraudulent  means,  an  officer  will  not 
be  subjected  to  damages  therefor,  unless  he  acted  with  a  purpose 
to  effect  the  attachment  by  such  means.  A  mere  illegal  possession 
followed  by  a  seizure  will  not  be  sufficient.  Therefore,  where  an 
officer  made  an  attachment  that  was  illegal,  and  abandoned  it,  and 
made  a  second  seizure,  the  latter  was  sustained,  because  it  did  not 
appear  that  the  first  was  made  with  the  purpose  of  holding  the 
j)rui)erty,  in  order  to  effect  the  second  levy .2 

§  104.  In  executing  tlie  writ,  the  officer  should  act  in  conformity 
to  the  law  under  which  he  proceeds ;  for,  if  the  service  be  illegal, 
no  lien  is  created  on  the  property .^  He  must  also  perform  his 
duty  in  such  a  manner  as  to  do  no  wrong  to  the  defendant.  On 
Buch  occasions  he  must  be  allowed  the  exercise  of  some  discretion, 
and  is  not  to  be  made  liable  for  every  trivial  mistake  of  judgment 
he  may  make  in  doubtful  cases.  But  the  discretion  allowed  him 
must  l)e  a  sound  discretion,  exercised  with  perfect  good  faith,  and 
with  an  intent  to  subserve  tlie  interests  of  both  the  debtor  and  tlic 
creditor.*  For,  when  an  officer  wh(jlly  departs  from  the  course 
pointed  out  to  him  l)y  the  law,  he  may  be  considered  as  intending 
from  the  beginning  to  do  so,  and  as  making  use  of  the  process  for 
a  mere  pretence  and  cover;  and,  therefore,  he  is  liable  in  the  same 
manner,  and  for  the  same  damages,  as  he  would  have  been,  if  he 
had  done  the  same  acts  without  the  legal  warrant  he  abused ;  he 
will  be  considered  a  trespasser  ah  initio.  In  other  words,  he  who 
at  first  acts  with  propriety  under  an  authority  or  license  given  by 
law,  and  afterwards  abuses  it,  shall  be  considered  a  trespasser  from 
the  beginning.5  The  reason  of  this  rule  is,  that  it  would  be  con- 
trary to  sound  public  policy,  to  permit  a  man  to  justify  himself  at 

1  Pomroy  ?'.  Piirmlee,  9  Jnwti.  140. 

3  Gile  f.  Devens,  1 1  Gushing,  59. 

»  Gardner  c.  Hust,  2  Uie-h;ird<on,  601. 

♦  Barrett  v.  White,  3  New  Hanip.  210.  In  Taylor  v.  Jones,  42  New  Ilamp.  25, 
the  court  said :  "  Such  an  error  or  mistake  as  a  person  of  ordinary  care  and  com- 
mon iutflli-ence  mi-;ht  commit,  will  not  amount  to  an  abuse;  but  there  must  be  a 
complete  departure  from  the  line  of  <liity,  or  such  an  improper  and  illegal  exercise  of 
the  authority  to  the  prejudice  of  another,  — such  an  active  and  wilful  wrong  perpe- 
trated,—as  will  warrant  the  conclusion  that  its  perpetrator  intended  from  the  first  to 
do  wrong,  and  to  use  his  legal  authority  as  a  cover  for  his  illegal  conduct.  Where  the 
acts  proved  warrant  no  such  conclusion,  the  person  charged  with  them  is  not  a  tres- 
passer." If 

6  Barrett  v.  White,  3  New  Hamp.  210. 

[125] 


§  lUo        EXECUTIJN  AND  RKTURX  OF  ATTACHMENT.    [CHAP.  ML 

all  under  a  license  or  authority,  allowed  him  hy  law,  after  he  has 
ahused  the  license  or  authority,  and  used  it  for  improper  purjx)ses. 
The  presumption  of  law  is,  that  he  who  thus  abuses  such  an  au- 
thority, assumed  the  exercise  of  it,  in  the  first  place,  for  the  pur- 
pose of  abusing  it.  The  abuse  is,  therefore,  very  justly  held  to  bo 
a  forfeiture  of  all  the  protection  which  the  law  would  otherwise 
give.  Therefore,  where  an  officer  attached  certain  hay  and  grain 
in  a  barn,  and,  without  any  necessity,  removed  the  same  from  the 
barn  at  an  unfit  and  unreasonable  time,  wiien  it  must  inevitably 
be  exposed  to  great  and  unnecessary  waste  and  destruction,  it  was 
held,  on  the  princijjles  above  stated,  to  be  such  an  abuse  as  to 
render  the  ofiicer  a  trespasser  ah  initio.^ 

§  104  a.  The  term  trespasser  ah  initio  is  of  frequent  occurrence 
in  connection  with  the  acts  of  ofTicers  executing  attachments,  and 
it  is  not  without  use  to  note  the  signification  of  the  term  in  this 
connection.  An  ofiicer  executing  lawful  process  in  a  lawful  man- 
ner, can  never  be  a  trespasser.  I>ut  if  he  act  under  unlawful 
process,  or  execute  lawful  process  in  aif  unlawful  manner,  he  is  so. 
And  whenever  he  does  such  acts  as  authorize  his  being  considered 
in  law  a  trespasser  ah  initio,  all  acts  done  l)y  him  in  the  ])articular 
case  are  unlawful,  and  he  may  be  held  responsible  therefor, 
just  as  if  he  had  been  devoid  of  any  authority,  seeming  or  real. 
If  he  has  attached  property,  he  cannot  hold  it,  if  the  defendant 
chooses  to  reclaim  it ;  or,  if  he  hold  it,  is  liable  to  the  defendant 
for  its  value.2  But  if  the  defendant  receive  back  the  proi)erty,  or 
it  was  legally  disposed  of  for  his  benefit,  such  fact  would,  in  an 
action  by  him  against  the  ofiicer  for  the  trespass,  go  iu  mitigation 
of  damages.^ 

§  195.  The  officer  should  be  careful  not  to  levy  the  vrrit  on  any 
property  not  liable  to  attachment ;  for  if  he  do,  he  will  be  consid- 
ered a  trespasser.^  But  if,  in  seizing  an  article, —  as,  for  instance, 
a  trunk,  —  he  is  under  a  necessity  of  taking  into  his  possession 
with  it  articles   exempt  from  attachment,  and  he  intermeddles 

1  Barrett  v.  White,  3  New  Ilamp.  210;  Peeler  v.  Stebbins,  26  Vermont,  644. 

2  Collins  i\  Perkins,  31  Vermont,  624. 

3  Yale  V.  Saunders,  16  Vermont,  243;  Stewart  v.  Martin,  Ibid.  397. 

*  Foss  V.  Stewart,  14  Maine,  312;  Bean  v.  Hnbbard,  4  Cushinn:,  85;  Pichards  v. 
Dafrpctt,  4  Mass.  534  ;  Gibson  v.  Jenney,  15  Ibid.  205 ;  Howard  ».  Willams,  2  Pick.  80 ; 
Lynd  v.  Picket,  7  Minnesota,  184. 
[126] 


CHAl'.  Vn.]   EXECUTION  AND  RETURN  OF  ATTACHilENT.       §  196 

with  tlicih  to  110  greater  extent  than  to  remove  them  from  the 
trunk,  and  eleliver  them  to  the  owner,  or,  upon  the  owner's  declin- 
ing to  receive  them  when  offered,  then  to  keep  them  safely  until 
called  fur,  he  commits  no  wrong. ^  And  if  the  defendant  assent 
to  the  attachment  at  the  time,  it  will  be  valid ;  and  a  subsequent 
assent  will  make  it  good  ah  initio?  If  the  property  is  a  part  of  a 
larger  quantity  than  the  law  exempts,  the  defendant  must  set  apart 
such  portion  as  is  exempted,  and  claim  it  as  such,  or  he  will  be 
held  to  have  consented  to  its  being  attached.^ 

§  lOij.  If  an  officer  attach  personalty  not  the  property  of  the 
defendant,  he  is,  of  course,  a  trespasser  on  the  rights  of  the  owner, 
who  may  maintain  either  trover,  trespass,  or  replevin  against  him. 
Such  an  attachment  is  a  tortious  act,  which  is  itself  a  conversion, 
and  if  trover  be  brought,  no  demand  on  the  officer  need  be  proved.* 
And  if  he  acts  by  the  direction  of  the  plaintifT,  the  latter  is  re- 
garded as  equally  guilty  and  equally  liable  for  the  trespass;^  but 
not  if  he  take  no  part  in  the  levy/'  unless  he  afterward  ratify  it; 
and  he  will  be  held  to  have  ratilied  it,  when  he  defends  against  a 
claim  of  property  filed  i>y  the  owner  in  the  attachment  suit."  And 
against  either  <}fficer  or  plaintiff,  where  both  engage  in  the  act, 
suit  may  be  brought  at  once,  without  any  demand  or  notice,^  and 
without  the  owner  being  under  obligation  to  take  any  steps  in  the 
suit  in  which  the  seizure  is  made  ;^  but  if  he  take  such  steps,  and 
claim  the  proi)erty  in  the  attachment  cause,  and  recover  judgment 
for  its  restitution,  his  right  to  recover  damages  for  the  illegal 
taking  and  detention  will  not  be  thereby  impaired.^*^  If,  however, 
after  thus  claiming  the  jiroperty,  he  agree  with  the  other  parties 
to  the  suit,  that  the  officer  may  sell  it,  and  hold  the  proceeds  sub- 
ject to  the  final  decision  of  the  controversy,  it  is  considered,  in 
Louisiana,  to  amount  to  a  waiver  of  his  claim  against  the  officer 
for  damages. ^^ 

1  Towns  V.  Prutt,  .33  New  ITiimp.  345.  i 

2  IK-wes  V.  Parkinnn,  20  Pick.  90. 

»  Ntu<h  V.  Farrin;;ton,  4  Alli-n,  157  ;  Clapp  v.  Thomas,  5  Ihid.  158. 
*  Woodbury  r.  I^ii-,  8  Pick.  543 ;   Ford  v.  Dyer,  26  Mississipiji,  243 ;  Meade  v. 
Smith,  16  Cuiin.  .346;  CaMwell  c.  Arnold,  8  Minnesota,  265. 
6  Marsh  v.  Hackiis  16  BarlKmr,  483. 

6  Butler  r.  Borders,  6  Blackford,  160 

7  Perrin  v.  Clatlin,  11  Missouri,  13. 

8  Tufts  i:  MeClintoek,  28  Maine,  424. 
»  Shuff  V.  Mor;;an,  9  Martin,  592. 

W  Trieber  i;.  Blachcr,  10  Maryland,  14.     "  Judson  v.  Lewis,  7  Louisiana  Annual,  55. 

[127] 


§  199       EXECUTION  AND  RETURN  OF  ATTACHMENT.   [CHAl'.  VII. 

§  107.  Tho  necessity  for  the  officer's  making  due  incjuiry  cun- 
ccniing  the  property  he  attaches  is  so  highly  regarded,  that  he 
will  ho  treated  as  a  trespasser  for  seizing  property  not  belonging 
to  the  defendant,  even  though  the  owner  give  him  no  special  no- 
tice that  the  property  is  his,  and  make  no  demand  fur  it.^  And 
the  remedy  of  the  owner  against  the  officer  is  not  imj)aired  by  tho 
owner  becoming  the  reccipter  to  the  officer  for  the  property  ;  f(jr 
in  such  case  the  owner  is  bound  by  the  terms  of  the  receipt  to 
retain  the  property  and  have  it  ready  for  delivery  on  demand ; 
and  in  an  action  on  the  receipt  would  be  estopped  from  setting  up 
property  in  himself.'* 

§  108.  What  will  amount  to  an  attachment,  for  which  trespass 
may  be  maintainc(l,  may  admit  of  question.  In  Pennsylvania  it 
was  held,  that  the  return  by  an  officer  that  he  had  attached  goods, 
which  ai)i)ear  not  to  have  been  the  defendant's,  subjects  the  officer 
to  an  action  of  trespass,  where  the  proj)erty  was  bound  by  tho 
levy,  and  was  in  the  officer's  i)ower,  thoiigh  there  was  no  manual 
handling  or  taking  them  into  possession.^  The  same  doctrine  has 
been  recognized  in  Massachusetts,*  and  New  Hampshire.'*  But 
where  an  officer  had  a  writ,  and  found  the  defendant  in  possession 
of  property,  and  informed  him  that  he  was  directed  to  make  an 
attachment ;  and  tho  defendant  informed  the  officer  that  the  prop- 
erty was  not  his  ;  and  the  officer  did  not  take  it  or  interfere  with 
it;  and  the  defendant  obtained  a  receiptor  for  it;  and  it  did  not 
appear  that  any  return  of  an  attachment  was  made ;  it  was  held, 
not  to  amount  to  a  conversion  by  the  officer.® 

§  100.  The  doctrines  of  the  common  law  in  relation  to  confu- 
sion of  goods,  have  been  partially  brought  into  view  and  applied, 
in  connection  with  the  execution  of  attachments.  What  will  con- 
stitute a  confusion  of  goods,  has  been  the  subject  of  much  discus- 
sion. Intermixture  is  not  necessarily  a  convertible  term  witli 
confusion ;  for  there  may  be  intermixture  without  confusion, 
though  there  can  be  no  confusion  without  intermixture.     Confu- 

1  Stickncv  r.  Da^-is,  16  Pick.  19. 

2  Robinson  v.  Munsficld,  13  Pick.  139;  Johns  v.  Church,  12  Ibid.  557. 
8  Paxton  V.  Stcckcl,  2  Ponn.  State,  93. 

*  Gibbs  V.  Chase,  10  Mass.  128;  Miller  v.  Baker,  1  Metcalf,  27. 
6  Morse  i;.  Hurd,  17  New  Hamp.  246. 
«  Kand  v.  Sargent,  23  Maine,  326. 
[128] 


CHAP.  VU.]   EXECUTION  AND  RETURN  OF  ATTACHMENT.       §  199 

sioii  takes  place  when  there  lias  been  such  an  intermixture  of  sim- 
ilar articles  owned  by  different  persons,  as  that  the  property  of 
each  can  no  longer  be  distinguished. ^  Confusion  may  be  predi- 
cated of  such  things  as  money,  corn,  or  hay,  which  have  nothing 
in  their  appearance  by  which  one  quantity  may  be  distinguished 
from  another.  And  so  it  has  been  held,  in  the  case  of  logs,  of  the 
same  description  of  wood  and  similarly  cut.^  But  where  the  arti- 
cles are  readily  distinguishable  from  each  other,  there  is  no  confu- 
sion ;  as  in  the  case  of  cattle,'  or  of  crockery  ware  and  china 
placed  on  the  same  shelf.* 

When  an  officer  proceeds  to  execute  an  attachment,  he  is  au- 
thorized to  seize  any  personalty  found  in  the  defendant's  posses- 
sion, if  he  have  no  reason  to  suppose  it  to  be  the  property  of  an- 
other. If  it  happen  tliat  tlie  goods  of  a  stranger  are  intermixed 
with  those  of  the  defendant,  even  without  the  owner's  knowledge, 
the  owner  can  maintain  no  action  against  the  officer  for  taking 
them,  until  he  have  notified  the  officer,  and  demanded  and  identi- 
fied his  goods,  and  the  officer  shall  have  delayed  or  refused  to 
deliver  theni.^  In  such  case  the  officer  cannot  be  treated  as  a 
trespasser  fur  taking  the  goods ;  but  if  he  sell  the  whole,  after  no- 
tice of  the  owner's  claim,  it  will  be  a  conversion,  for  which  trover 
may  be  maintained.' 

If  a  party  wilfully  intermingle  his  goods  with  those  of  another, 
so  that  they  cannot  be  distinguished,  the  other  party  is,  by  the 
princi{>les  of  the  common  law,  entitled   to  the  entire  property, 

»  Hesscltinc  v.  Stockwell,  30  Maine,  237 ;  Tufts  i'.  McClintock,  28  Ibid.  424.  In 
Robin-Mjn  r.  Holt,  3'J  New  Hamp.  537,  the  coart  said:  "The  doctrine  of  the  confusion 
of  ^ooiU  has  l)Oon  often  discussed,  and  may  be  considered  as  clearly  and  distinctly  set- 
tled. If  the  i:oo<ls  of  several  intcrminj;led  can  be  easily  distin^ruishcd  and  separated, 
no  chan;,'e  of  pn>|>crty  Uikes  place,  and  each  party  may  lay  claim  to  his  own.  If  the 
po<>d<  an-  of  the  r-aine  nature  an<l  value,  althou|,'h  not  capable  of  an  actual  separati<^n 
by  identifvin-.;  each  particular,  if  the  jiortion  of  each  owner  is  known,  and  a  division 
can  be  matie  of  «|ual  proportionate  value,  as  in  the  case  of  a  mixture  of  corn,  coffee, 
tea,  wine,  or  other  article  of  the  same  kind  and  quality,  then  each  may  claim  his  ali- 
quot part ;  but  if  the  mixture  is  un.listintrui.-^hablc,  because  a  new  inj:redient  is  formed, 
not  capable  of  a  just  appreciation  and  division  according  to  the  ori<,'inal  ri^^hts  of  each, 
or  if  the  articles  mixed  are  of  different  values  or  quantities,  and  the  original  values  or 
quantities  cannot  be  determined,  the  party  who  occasions,  or  through  whose  fault  or 
neglect  occurs  the  wrongful  mixture,  must  l>ear  the  whole  loss." 

^  Loomis  V.  Green,  7  Maine,  386 ;  Hesseltine  v.  Stockwell,  30  Ibid.  237. 

»  Holbrook  V.  Hyde,  1  Vermont,  286. 

♦  Treat  v.  Barber,  7  Conn.  274. 

6  Tufts  V.  McClintock,  28  >L»ine,  424;  Wilson  v.  Lane,  .33  New  Hamp.  466. 

«  Lewis  V.  Whittemore,  5  New  Hamp.  364;  Albee  v.  Webster,  16  Ibid.  362;  Sham- 
way  1-.  Rutter,  8  rick.  443. 

9  [129] 


§  109  EXECI'TloX    AND    RKTIRN    OF    ATTACIIMEXT.        [CII.U'.  VII. 

witliout  liability  to  :icct)iiut  for  any  part  of  it.^  in  that  case,  an 
officer  cannot  attach  any  of  the  goods  for  a  del)t  of  liiui  who 
caused  the  intermixture  ;^  but  may  attach  the  whole  for  the  debt 
of  the  innocent  party ;  and  if  the  former  would  reclaim  his  prop- 
erty by  law,  the  burden  of  proof  is  on  himself,  to  distinguish  his 
goods  from  those  of  the  defendant.'  If  he  know  of  the  attach- 
ment, and  fail  to  notify  the  olficer  of  his  claim,  he  cannot  subject 
the  ofTiccr  to  any  accountability  for  the  seizure.'** 

If  an  olTicer  be  notified,  or  have  reason  to  believe,  that  goods  of 
a  stranger  are  intermingled  with  those  of  a  defendant,  it  is  his 
duty  to  make  pro|)er  in(iuiry,  with  a  view  to  avoid  seizing  prop- 
erty which  is  not  the  defendant's.  He  may  require  the  claimant 
to  point  out  his  property,  and  if,  being  able  to  do  so,  he  refuse,  the 
officer  may  seize  the  whole,  without  liability  to  be  proceeded 
against  for  a  tort."^  When,  however,  an  olficer  having  an  attach- 
ment against  A.,  undertakes  to  levy  it  on  property  in  the  hands  of 
I>.,  upon  the  assumption  that  B.'s  title  is  fraudulent,  and  that  tlie 
])roperty  is  really  A.'s ;  and  the  goods  he  seeks  to  reach  are  inter- 
mingled with  others  of  a  similar  kind,  which,  without  dispute,  be- 
long to  B. ;  he  cannot  demand  of  B.  to  select  what  is  undisput- 
edly  his  ;  and  a  refusal  by  B.  to  make  such  selection,  will  not 
justify  an  attaclmient  of  the  whole  ;  unless  B.  made  the  intermix- 
ture fraudulently,  and  with  the  intention  of  frustrating  the  attach- 
ment.'"' 

To  justify  an  attachment  of  the  goods  of  a  stranger,  on  the 

1  Ryder  r.  Iliitliawny,  2  Pick.  298;  Willjinl  r.  l?irc,  11  Mctcalf,  49.1;  2  Kent's  Com. 
364;  Sfi>ry  on  Hailmtnts,  §40;  Beach  v.  Schmiiltz,  20  Illinois,  IS.'S;  RoMn.ton  v.  Holt, 
39  New  llaiiip.  557  ;  Taylor  r.  Jones,  42  Iliid.  25.  In  Smith  v.  Sanborn,  6  Gray,  134, 
the  court  said  :  "  A  ehanjjc  of  ownership  rloos  not  necessarily  ensue  from  the  mere  in- 
termixture of  projicrty  iH'Ionginfr  to  different  indiviilunls.  Their  ri;;hts  as  owners  may 
remain  unaffected  after  it  has  taken  place.  Each  one  of  them  is  still  at  liberty  to  re- 
claim what  had  before  lielon;;cd  to  him,  if  it  can  be  distinj,'uished  and  separated  from 
the  rest ;  or  may  insist  on  receivinpf  his  just  jjroportion  of  the  whole,  when  the  .several 
parcels  of  which  it  consists,  thoH),'h  they  have  become  indistinj;uishable,  are  of  substan- 
tially the  same  (piality  and  value.  It  is  only  in  those  cases  where  the  intermixture  has 
been  cau.scd  by  the  wilful  or  unlawful  act  of  one  of  the  proprietors,  and  the  several 
parcels  have  thereby  become  so  combined  or  mingled  together  that  they  can  no  longer 
be  identified,  that  his  interest  in  them  is  lost." 

-  Beach  v.  Schmultz,  20  Illinois,  185. 

8  I.oomis  V.  Green,  7  Maine,  386  ;  Wilson  v.  Lane,  33  New  Hamp.  466  ;  Robinson  v. 
Holt,  39  Ibid.  557. 

*  Bond  !•.  Ward,  7  Mass.  123;  Lewis  v.  Whittemore,  5  New  Hamp.  364 ;  Wilson  r. 
Lane,  33  Ibid.  466. 

6  Sawyer  v.  Merrill,  6  Pick.  478 ;  Albee  v.  Webster,  16  New  Hamp.  362. 

6  Treat  v.  Barber,  7  Conn.  274. 
[130] 


CHAP.  \TI.]        EXECUTION   AND   RETURN   OF   ATTACHMENT  §  200 

ground  of  intermixture,  it  is  incumbent  on  the  officer  to  show  that 
the  goods  were  of  such  character,  or,  at  least,  that  there  was  such 
an  intermixture,  that  they  could  not,  upon  due  inquiry,  be  distin- 
guished from  those  of  the  defendant.^ 

The  necessity  for  inquiry  in  such  cases  is,  with  great  propriety, 
very  strongly  insisted  on  by  the  courts,  particularly  in  cases  where 
the  officer  has  a  reasonable  ground  to  induce  a  belief,  that,  in  exe- 
cuting the  writ,  ho  may  seize  the  property  of  a  stranger,  who  is 
not  present  to  assert  his  rights,  and  does  not  know  of  the  seizure. 
Therefore,  wliere  an  officer,  under  such  circumstances,  made  no 
inquiry  at  all,  and  there  was  strong  internal  evidence,  in  the  man- 
ner of  his  advertising  the  property  for  sale,  that  he  must  have 
been  apprised  that  there  was  a  defect  in  the  defendant's  title ;  it 
was  held,  that  the  owner  miglit  maintain  trespass  against  him  for 
taking  the  projicrty.^ 

Wlien  a  tliird  party  claims  that  his  goods  are  intermingled,  and 
have  been  attached,  with  tliose  of  the  defendant,  and  exhibits  to 
the  officer  a  bill  of  sale  of  articles,  and  there  are  other  articles  of 
a  like  kind  attached,  so  as  that  those  of  the  claimant  are  undis- 
linguishai)le,  the  officer  will  be  justified  in  selecting  and  giving  up 
the  least  valuable  articles  corresponding  with  the  bill  of  sale.^ 

§  200.  An  officer  liaving  an  attachment  may  enter  the  store  of 
a  third  person  where  goods  of  the  defendant  are,  for  the  purpose 
of  executing  the  writ,  and  may  even  break  open  the  door,  if  re- 
fused admittance  on  request,  and  may  remain  there  long  enough 
to  seize,  secure,  and  inventory  the  goods ;  and  if  the  owner  of  the 
storo  resist  or  oppose  him,  he  may  use  whatever  force  is  necessary 
to  enable  him  to  perform  his  duty.*  In  every  such  case  a  demand 
for  admittance  must  precede  any  resort  to  force.  If  the  demand 
be  made  upon  the  person  having  the  key  of  the  building,  it  is  all 
that  is  necessary ;  and  the  officer  is  not  bound  to  inquire  how,  or 
in  what  way,  such  person  became  possessed  of  the  key.^  But  if, 
iu  such  case,  the  officer  take  entire  possession  of  the  building,  ex- 

1  Walcott  V.  Keith,  2  Foster,  196 ;  Wilson  v.  Lane,  33  New  Ilamp.  466. 

2  Sibley  r.  Brown,  15  Maine,  185;  Smith  r.  Sanborn,  6  Gray,  134;  Carlton  v.  Da- 
Tis,  8  Allen,  94 ;  Uilman  v.  Hill,  36  New  ilamp.  311. 

«  Shumwav  v.  Rutter,  8  Pick.  443. 

♦  Fullerton  i'.  Mack,  2  Aikcns,  415;  Piatt  v.  Brown,  16  Pick.  553;  Burton  v.  Wil- 
kinson, IS  Vermont,  196;  Messner  v.  Lewis,  20  Texas,  221. 
6  Burton  v.  Wilkinson,  18  Vermont,  186. 

[1311 


§202  PLTECUTION   AND   KETUIIN    <»i     A 1  1  ACilMl.M.        [<  llAi".  Ml. 

eluding  the  owner,  he  may,  as  respects  the  owner,  be  regarded  as 
a  trespasser  ah  initio.^  "When,  however,  tlic  matter  of  forcing  an 
entrance  into  a  dwelling-house,  for  the  jjurjjose  of  attaching  prup- 
crty  of  the  owner,  is  presented,  the  law  takes  dilTerent  ground, 
an<l  not  only  declares  such  forcing  an  unlawful  act,  but  that  the 
attac'hmcnt  made  by  means  of  it  is  unlawful  and  invalid.-  And 
this  was  lield  to  apply  to  the  case  of  a  party  living  in  a  tenementr 
house,  wliich  was  let  in  distinct  portions  to  several  tenants,  who 
used  in  common  the  entry  and  stairway.  It  was  decided  that,  in 
such  case,  an  officer  wlio  has  entered  through  the  outer  door  into 
the  entry,  has  no  right  to  break  open  the  door  of  one  of  the  rooms 
of  a  tenant,  in  order  to  attach  the  property  of  a  third  person 
therein.'^  But  in  Vermont,  if  the  properly  of  a  stranger  be  se- 
creted in  a  dwelling-house,  it  is  held,  that  the  oflicer  may  proceed 
as  in  tlie  case  of  a  store.* 

§  2')!.  Ill  a  case  which  came  up  in  Maine,  it  was  attempted  to 
establish  tlie  doctrine  that  an  ofTicer  who  levies  an  attachment  on 
property  of  greater  amount  in  value  than  tlie  debt  to  be  secured, 
transcends  his  authority,  and  becomes  a  trespasser  ah  initio,  and 
therefore  that  the  attachment  is  invalid.  But  the  court  held,  that 
it  did  not  necessarily  follow  that  the  officer  acted  oppressively  or 
illegally,  because  he  attached  more  property  than  was  necessary  to 
satisfy  the  attacliment ;  that  if  he  acted  oppressively,  he  might  be 
liable  to  an  action  by  the  party  injured  ;  but  that  third  persons 
could  not  interpose  and  claim  to  set  aside  the  attachment  for  tliat 
cause. ^ 

§  202.  An  officer  should  not  do  any  act,  at  the  time  of  making 
an  attachment,  which  could  be  construed  into  an  abandonment  of 
the  attachment,  or  the  attachment  will  be  a  nullity.  Thus,  where 
an  officer  having  an  attachment,  got  into  a  wagon  in  which  the 
defendant  was  riding,  and  told  the  defendant  that  he  attached  the 
horse  harnessed  to  the  wagon,  and  then  rode  down  street  with  the 
defendant,  without  exercising  any  other  act  of  possession,  and  left 
the  horse  with  the  defendant,  upon  his  promising  to  get  a  receipter 

1  Fullcrton  v.  Mack,  2  Aikens,  415;  Newton  v.  Adams,  4  Vermont,  437. 

2  Ilsley  V.  Nichols,  12  Pick.  270;  People  v.  Hubbard,  24  Wendell,  369. 

*  Swain  v.  Mizner,  8  Gray,  182. 

*  Burton  v.  Wilkinson,  18  Vermont,  186. 
6  Merrill  v.  Curtis,  18  Maine,  272. 

[132] 


CHAP.  VIl]   EXECUTION  AND  RETURN  OF  ATTACHMENT.       8  204 

for  it ;  it  was  held,  that,  as  the  horse  had  not  been  under  the  offi- 
cer's control  for  a  moment,  or,  if  it  could  be  considered  that  he 
had  had  an  instantaneous  possession,  it  was  as  instantaneously 
abandoned,  there  was  no  attachment.^ 

§  203.  A  question  here  arises,  as  to  the  right  of  an  attaching 
officer  to  use  the  property  attached,  and  the  consequences  to  him 
of  such  use.  It  is  held  in  Vermont,  that  if  he  use  the  prop- 
erty —  as,  for  instance,  a  horse  —  sufficiently  to  pay  for  its  keep- 
ing, he  cannot  require  pay  for  such  keeping; 2  and  the  court  there 
seemed  to  regard  such  use  as  perhaps  admissible  to  that  extent ; 
but  as  an  uiisiife  and  pernicious  proceeding,  not  to  be  counte- 
nanced.^ Aside  from  this  question,  however,  there  can  be  no 
doubt  tliat  if  the  officer,  or  his  bailee,  use  the  property,  so  that  its 
value  is  thereby  impaired,  he  becomes  by  such  use  a  trespasser  ah 
initio*  But  the  doctrine  does  not  appear  to  have  been  extended 
to  any  case,  except  where  there  has  been  a  clear,  substantial  viola- 
tion of  the  owner's  rights,  and  of  such  a  character  as  to  show  a 
wanton  disregard  of  duty  on  the  part  of  the  officer,  or  his  bailee, 
either  where  the  property  has  been  injured,  or  has  been  used  by 
an  officer  for  his  own  l)enefit,  or  for  the  benefit  of  some  other  than 
the  attachment  del»tor.  Therefore,  where  an  officer  attached  a 
horse,  wagon,  and  harness,  and  immediately  put  them  to  use  in 
removing  other  personal  property  of  the  debtor,  attached  by  him 
at  the  same  time,  and  it  appeared  that  they  were  not  thereby  in- 
jured, it  was  held,  that  for  such  use  he  was  not  liable  as  a  tres- 
passer ab  initio.  And  where  it  appeared  that  the  officer  was  seen 
driving  the  horse  along  the  highway,  the  next  day  after  the  attach- 
ment, and  tiiere  was  no  proof  of  the  purpose  of  such  driving,  it 
was  considered  that  it  should  not  be  presumed  to  have  been  for 
an  unlawful  ))urpose.'' 

§  204.  The  officer  having  duly  levied  the  attachment,  his  next 
duty  is  to  make  return  of  it;  for  it  is  held  that,  though  he  may 
retain  the  property  till  the  i;eturn  day  of  the  writ,  without,  makhig 

>  French  v.  Stanley,  21  Maine.  512.  "'--' 

-  Dean  v.  Bailey,  12  Vermont,  142. 

*  Lamb  c.  Day,  8  Vermont,  407. 

*  Lamb  v.  Day,  8  Vermont,  407  ;  Briggs  v.  Gleason,  29  Ibid.  78 ;  Collins  r.  Perkins, 
31  Ibid.  624. 

*  Paul  V.  Slason,  22  Vermont,  231. 

[133] 


§  205        EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CMAl'.  ML 

his  return,  yet  that  tlie  mukinj?  of  a  written  return  is  necessary  to 
jKirfeet  the  uttaclinient,  and  if  it  Ix)  not  made  on  or  before  the 
return  day,  the  attachment  will  be  dissolved.*  This  return  can  bo 
made  only  liy  the  ofhcor  to  whom  the  writ  was  directed.  A  return 
made  by  another  oflicer  is  void.-  And  as  his  return  is  in  general 
conclusive  against  him,  and  eannot  bo  disproved  by  parol  evi- 
dence,^ it  is  imjjortant,  not  only  to  all  parties  interested,  but  to 
himself,  that  it  ^hould  be  made  with  great  care.  In  a  ease  which 
cain«;  up  in  Maine,  the  court  use  this  language :  "  OtTicers  ought 
to  know  what  they  attach,  and  to  be  holden  to  exactness  and  pre- 
cision in  making  their  returns.  Neither  the  del)tor  nor  the  cred- 
itor would  be  safe  if  it  were  otherwise.  And  it  is  well  that  the 
law  should  be  so  j)romulgated  and  understood.  An  oflieer  in  sucli 
cases  is  intrusted  with  great  power.  lie  may  seize  another  man's 
property,  without  the  presence  of  witnesses,  whether  it  be  goods 
in  a  store;  or  elsewhere  ;  and  safety  only  lies  in  holding  him  to  a 
strict,  minute,  and  particular  account.  To  hold  that  he  may,  in- 
dirterently,  make  return  of  his  doings  at  randoAi,  and  afterwards 
be  permitted  to  show  that  what  he  actually  did  was  entirely  dilfer- 
ent,  would  be  o|)eninga  door  to  infinite  laxity  and  fraud,  and  mis- 
chiefs incalculable."  The  court,  acting  on  these  views,  held, 
where  the  officer  had  returned  an  attachment  of  175  yards  of 
broadcloth,  and  was  sued  for  not  having  the  cloth  forthcoming  on 
execution,  that  he  could  not  give  evidence  that  he  had  attached 
all  the  broadcloths  in  the  defendant's  possession  ;  that  the  whole 
of  the  broadcloths  so  attached  amounted  to  no  more  than  thirty 
yards  ;  and  that  by  mistake  he  over-estimated  the  number  of  yards 
in  the  lot.* 

§  205.   The  return  should  state  specifically  what  the  officer  has 

1  Wilder  V.  Holden.  24  Pick.  8 ;  Russ  i-.  Butterficld,  6  Cashing,  242  ;  Williams  v. 
Bal)l)itt.  14  Gray,  141  ;  Tomlinson  v.  Stiles,  4  Dutclicr,  201  ;  9.  c.  5  Ibid.  426.  In 
Alabama,  however,  in  the  ea.se  of  an  ancillary  attachment  —  which  is  an  attachment 
taken  out  in  a  suit  jireviously  instituted  by  summons  —  it  was  hi-ld,  that  the  failure  of 
a  sheriff,  without  the  connivance  or  consent  of  the  plaintiff,  to  return  such  an  attach- 
ment until  after  judgment,  did  not  afleet  the  plaintiff's  lien.  Heed  •.  Perkins,  14  Ala- 
bama, 231.  And  in  South  Carolina,  a  sheriff  \^o  had  neglected  to  make  his  return 
in  proper  time,  was  allowed  to  make  it  afterward  nunc  pro  tunc.  Bancroft  v.  Sinclair, 
12  Fiichardson,  617. 

-  Olney  v.  Shepherd,  8  Blackford,  146. 

8  Paxton  V.  Steekel.  2  Penn.  St:ite,  93;  French  v.  Stanley,  21  Maine,  .512;  Hayncs 
V.  Small.  22  Ibid.  14 ;  Denny  i-.  Willard,  11  Pick.  .519 ;  Brown  v.  Davis,  9  New  llamp. 
76;  Clarke  v.  Gary,  11  Alabama,  98  ;  Chadbourne  v.  Sumner,  16  New  Hamp.  129. 

*  Havnes  v.  Small,  22  Maine,  14 ;  Clarke  v.  Gary,  11  Alabama,  98 
' [1341 


CHAP.  VII.]        EXECUTION   AN'D   RETURN   OF   ATTACH^IEST.  §  207 

done ;  and,  where  the  mauQcr  of  dohig  it  is  important,  it  should 
be  set  forth,  that  the  court  may  judge  whether  the  requirements 
of  the  law  have  been  complied  with.  It  does  not  answer  for  the 
officer,  in  such  case,  to  return  that  he  attached ;  he  should  return 
his  doing's  and  leave  the  court  to  determine  whether  they  consti- 
tuted an° attachment.^  Neither  should  he  return  that  he  executed 
the  writ  as  the  law  directs  ;  for  that  is  but  his  opinion  of  his  own 
acts  2  But  where  the  officer  returned  that  he  had  "levied"  the 
writ  on  certain  personal  property,  it  was  held,  that  the  term  could 
only  mean  a  legal  levy,  which  included  a  seizure  of  the  property. 
And  where  the  statute  required  the  officer  to  summon  debtors  of 
the  defendant  as  garnishees,  it  was  held  that  a  return  in  the  words 
"  Garnishced  D.  M.  M."  was  sufficient.* 

S  ^00     But  though  an  officer's  return  is  in  general  conclusive 
again.t  him,  vet  where  it  states  a  thing  which,  from  the  nature  of 
tlic  case,  must  be  a  matter  of  opinion  only,  it  has  been  held  that 
he  is  not  concluded  by  it,  but  may  explain  it  by  parol  evidence. 
Thus  where  the  return  affixes  a  value  to  the  goods  levied  on,  the 
sheriff  will  not  be  concluded  by  it  ;S  but  it  will  be  held,  as  against 
him,  to  he  primd  facie  a  just  and  fair  valuation,  and  the  oni/«  will 
rest  on  him  to  establish  the  contrary .«     So,  where  a  sheriff  re- 
turned  that  he  had  attached  certain  goods,  at  the  hour  ot   hve 
o'clock  ;    it  was  held,  that  the  return  wus  primd  fade  indicative 
of  the  true  time,  and  might,  if  no  other  standard  could  be  found, 
be  conclusive  on  him  ;  but  that  it  was  impossible  for  the  sheriff  to 
know,  from  his  judgment  or  his  watch,  that  five  o'clock  was  the 
exact  period  of  the  levy,  and  his  opinion  on  this  point,  unnecessa- 
rily returned,  ought  not  to  be  considered  as  a  conclusive  averment 
of  fact,  but  might  be  explained  by  parol  testimony  showmg  the 
moment  when  the  levy  took  place.'^ 

§  207.   It  is  proper  that  the  return  should  state  that  the  prop- 

»  Gibson  r.  Wilson,  5  Arkansas.  422.  o  -   -  x-   TKirl    'S.iq  •  De- 

»  Stockton  V.  Downcv,  6  Louisiana  Annual.  581  ;  Page  v  GencrH  Ibid.  549,  Ue- 
»ha  V.  Baker.  3  Ark:iusA-s  509 ;  Cris.nan  i-.  Swisher,  4  Dutcher,  149. 
»  Baldwin  V.  Con-cr,  9  Snu-dcs  &  Mar>hall,  516. 
«  Bryan  ..  Lashlo",  13  Smc^dcs  &  Marshall,  284.     Sed  contra.  Desha  v.  Baker, 

kuuas,  509. 

'  Denton  v.  Livingston,  9  Johns.  96. 
•  Pierce  v.  Strickland.  2  Story,  292. 
1  Williams  r.  Chceaborouyh,  4  Conn.  356.  flSol 


^  208  EXECUTION    AND   RETIRS   OF   ATTACHMENT.        [(HAP.  VIL 

city  K- vied  uu  wa>  tin-  |....|..  rty  of  the  (IcfouJiint.  Whether  tho 
ul.sence  of  such  a  stutemeut  wouM  invulidato  tlio  levy,  is  not  cer- 
tain. Ill  Virginia,  Kentucky,  and  Missouri  it  has  lieon  decided, 
tliat  ail  attachment  of  personal  property  without  siiying  wliosc  it 
16,  is  bad  ;^  and  in  Iowa  the  same  ground  is  taken  as  to  an  attach- 
ment of  real  estate.^  But  in  Alabama  it  was  held,  that  in  such 
ea.se  it  will  bo  intended  that  the  projicrty,  whether  real  or  j)cr- 
soiial,  was  the  defendant's  ;3  and  so  in  New  York,  in  regard  to 
l)ersonal  proi>erty.*  Where  an  attachment  issued  against  Charles 
G.  Miller,  William  J.  Wright,  and  Thomas  R.  Crews,  and  was  re- 
turned "  levied  on  four  bags  marked  T.  R.  C,  also  twenty-ono 
bags,  W.  J.  W.,  also  fifteen  bags  marked  C.  G.  Miller,  as  the  prop- 
erty of  the  defendants,  it  was  held  that  the  return  sunficieutly 
showed  that  the  property  levied  on  was  the  pro|>erly  of  tlie  de- 
fendants.^ 

§  20fi.  Ily  the  general  j)rineipl''s  of  law,  iii'i'p«ii<lent  of  any 
statutory  regulation,  the  officer  is  bound  to  give,  as  nearly  as  it 
can  reasonably  l)c  done,  in  his  return,  or  in  a  schedule  or  inventory 
annexed  thereto,  a  siwcific  deserij.tion  of  the  articles  attached, 
their  quantity,  size,  and  number,  and  any  other  circumstances 
proper  to  a.scertiin  their  identity."  If  he  give  such  description  in 
his  return,  it  is  not  necessary  that  he  should  accompany  it  with  a 
separate  schedule,  though  the  statute  require  him  to  return  the 
■writ,  "with  his  return  indorsed  thereon,  and  a  schedule  of  the 
property  attached."'  It  does  not  seem,  however,  that  any  more 
precision  should  l)e  exhibited  in  the  return,  than  is  necessary  for 
the  identilieation  of  the  property,  llence,  where  a  sherin*  returned 
an  attachment  of  four  horses  (describing  their  color),  as  the  prop- 
erty of  the  defendant,  it  was  held  sufficient.^  So,  where  an  officer 
returned  that  he  had  attached  all  the  "  stock  of  every  kind  "  in  a 
woollen  factory  particularly  described,  specifying  the  stock  as  a 

1  Clay  r.  Neilson,  5  Randolph,  596 ;  Mason  r.  Anderson,  3  Monroe,  293 ;  Anderson 
r.  Scott,  2  Missouri,  15. 

*  Tiffany  r.  Glover,  3  G.  Greene,  387. 

8  Bickorsmff  v.  Patterson,  8  Porter,  245  ;  Lucas  v.  Godwin,  6  .tVlabama,  831  ;  Thorn- 
ton V.  Winter,  9  Iltid.  613. 

*  Johnson  v.  Moss,  20  Wendell,  U5. 

6  Miller  V.  McMillan,  4  Alabama,  527. 

*  Pierce  v.  Strickland,  2  Story,  292  ;  Baxter  v.  Rice,  21  Pick.  197  ;  Haynes  v.  Small, 
22  Maine,  14 ;  Toiilmin  v.  Lesesne,  2  Alabama,  359. 

T  Pearce  v.  Baldridge,  7  Arkansas,  413. 

8  Gary  r.  McCown,  6  Alabama,  370 ;  Wharton  v.  Conger,  9  Smedes  &  Marshall,  510. 
[136] 


CHAP.  VII  ]    EXECUTION  AND  RETURN  OF  ATTACHMENT.       §  210 

"lot  of  dye-wood  and  dye-stuff,"  —  "lot  of  clean  wool,"  —  "six- 
teen pieces  of  black,  Oxford  mixed  cassimere,"  —  "twenty-five 
pieces  doeskins  and  tweeds,"  — "  fifty-one  pieces  of  unfinished 
cloth,"  —  "lot  of  cotton  wool,"  —  "lot  of  colored  wool," — "cot- 
ton wool,  oils,"  A'C,  "in  said  woollen  factory,"  —  the  return  was 
held  surticient.^  But  a  return  of  an  attachment  of  "  a  stock  of 
goods,  wares,  and  merchandise,"  without  any  specification  thereof, 
cither  in  the  return  or  in  an  annexed  schedule,  was  held  insuf- 
ficient.' A  failure  to  s|>ecify  the  articles  attached,  will,  however, 
Bulyect  the  officer  to  nominal  damages  only,  unless  special  damage 
be  shown  ;^  and  will  not  in  any  case  authorize  the  attachment  to 
be  quashed.* 

§  209.  Unless  required  by  statute,  it  is  no  part  of  an  offi- 
cer's duty  to  affix  a  valuation  to  the  property  he  attaches.^  "Wo 
have  just  seen  that  the  statt.'ment  of  a  valuation  will,  however, 
be  prinui  facie  evidence,  as  against  him,  of  its  own  correctness.® 
The  omission  to  affix  a  value,  when  he  is  not  bound  to  state  it,  can 
hardly  in  any  case  prejudice  the  otlicer.  In  such  an  extreme  case, 
however,  as  arose  in  Maine,  where  there  was  an  entire  absence  of 
all  evidence  of  the  value  of  the  juoperty,  it  would  probably  bo  held, 
as  it  was  tliere,  that  the  projicrty  was  of  the  value  commanded  to 
b«  attaclied." 

^  21iJ.  Wliere  an  ofhct'r  is  a  p;irty  t.-ither  claiming  or  justifying 
un<k*r  his  own  ofhcial  acts,  his  return  must  be  received  as  evidence; 
Otherwise  it  would  Ikj  iiujwssible,  in  most  cases,  to  prove  an  attach- 
ment of  projK-'rty  on  mesne  process,  or  its  seizure  on  execution. 
Tlie  officer  might  produce  his  precept  and  show  his  return  upon 
it,  but  if  tliis  bo  not  prima  facie  evidence,  he  could  never  prove 
the  attachment,  unless  ho  took,  or  happened  to  have  with  him,  a 
witness  to  prove  the  truth  of  his  return.  It  may  therefore  be  laid 
down  as  an  uniiuestioned  rule,  that  the  returns  of  sworn  officers, 
acting  within  the  sphere  of  their  official  duty,  are  always  compe- 
tent evidence,  and  are  to  b«»  presumed  to  be  correct,  until  the  con- 
trary be  shown.*     In  New  Hampshire  it  is  held,  as  between  the 

»  Ela  p.  Shcpanl,  32  New  Hampshire,  277.  '  Pierce  v.  Strickland,  2  Story,  292. 

'  Meaner  r.  I/cwi*,  20  Ti-xa.«.  221.  «  Ante,  §  206. 

•  Bruce  V.  PcttenRill.  12  New  Hiimp.  341.  ^  Childa  v.  Ham,  23  Maine,  74. 

•  Green  r.  I'yne,  1  Alabama,  2.35. 

•  Bruce  v.  iioldcn,  21  PicL  187 ;   Bias  v.  Badger,  6  New  Ilamp.  393 ;  Nichols  v 

[137] 


§  212  EXECUTION   AND   RETURN   OF   ATTACHMENT.        [CIIAI*.  VIL 

officer  and  a  trespasser,  that  an  officer's  return  of  an  attachment 
of  personal  property,  is  equivalent  to  a  return  of  all  the  facts  and 
acts  dune,  which  are  recpiired  to  constitute  a  valid  attachment, 
and  is  conclusive  of  the  fact,  and  cannot  be  disproved  by  parol 
evidence.^  And  so,  in  Maine,  where  in  an  action  of  replevin 
against  him,  he  sets  up  the  attachment  as  a  defence.'-^ 

§  210  a.  An  officer  who  justifies  the  taking  of  property  under 
an  attachment,  must  show  that  the  attaclnnent  was  actually  re- 
turned at  the  time  when  it  was,  by  law,  returnable.  If  the  action 
against  him  be  brought,  and  a  trial  therein  had,  before  the  writ 
under  which  he  acted  is  returnal>le,  the  production  of  the  writ, 
with  his  return  thereon,  will  be  sufficient,  because  he  is  the  proper 
custodian  of  the  writ  until  the  return  day.  But  if  he  fails  to  make 
his  return  in  the  time  required  by  law,  he  cannot  justify  under  it, 
whether  the  action  be  brought  before  or  after  the  return  day.^ 

§  210  b.  Where  an  officer  justifies  under  an  attachment,  a  mis- 
description in  his  return  of  an  article  of  personal  property  attached 
by  him  will  not  vitiate  the  attachment,  if  the  appearance  and  use 
of  the  article  are  such  that  it  may  have  been  naturally  and  in 
good  faith  so  misdescril)ed.  And  this  is  not  a  question  of  law  to 
be  decided  by  the  court,  but  of  fact  to  be  tried  l)y  a  jury.* 

§  211.  When  an  attachment  has  been  returned,  the  return  is 
beyond  the  reach  of  the  officer  and  of  the  court  into  which  it  is 
made,  unless  a  proper  case  be  presented  for  the  court  to  grant 
leave  to  amend  it.  The  court  will  not  order  a  return  to  be  set 
aside,  upon  the  application  of  a  party  to  the  cause,  on  his  averring 
its  incorrectness;^  nor  can  a  court,  where  one  tract  of  land  is 
attached,  and  so  returned,  require  the  officer,  by  rule,  to  substitute 
a  different  tract.^ 

§  212.   As  a  general  proposition,  every  court  may  allow  amend- 

Patten,  18  Maine,  231  ;   Policy  v.  Lenox  Iron  Works,  4  Allen,  329  ;  Chadbourne  v. 
Sumner,  16  New  Ilamp.  129. 

1  Brown  v.  Davis,"  9  New  Hamp.  76 ;  Lathrop  v.  Blake,  3  Foster,  46. 

2  Smith  V.  Smith,  24  Maine,  555. 

8  Russ  V.  Buttertield,  6  Gushing,  242  ;  Williams  v.  Babbett,  14  Gray,  141. 
*  Briggs  V.  Mason,  31  Vermont,  433. 
6  Maris  v.  Schcrmerhorn,  3  Wharton,  13. 
6  Steinmetz  i.  Nixon,  3  Ycates,  285. 
[138] 


CHAP.  Vn]        EXKCL'TION   AND   RETURN   OF   ATTACHMENT.  §  21-4 

meats  of  returns  upon  its  process.  All  applications  for  the  exercise 
of  tins  power  are  addressed  to  the  sound  legal  discretion  of  the 
court,  to  be  determined  by  the  nature  and  effect  of  the  proposed 
amendment ;  ^  and  being  so,  a  refusal  to  allow  an  amendment  will 
not  be  crror.2  And  though  amendments  may  be  allowed,  which, 
on  consideration,  may  appear  of  doubtful  expediency,  yet  if  they 
are  ijcrraitted  in  the  legal  exercise  of  a  discretion,  their  propriety 
will  not  in  general  be  questioned  on  exceptions.  But  if  the 
am»jndnient  be  one  which  the  law  does  not  authorize,  it  is  othcr- 
wiscf^  The  exercise  of  this  discretion  is,  in  the  absence  of  power 
conferred  by  statute,  confined  to  the  court  out  of  which  the  process 
issued  ;  therefore  a  suijcrior  court  has  no  right,  on  a  trial  before 
it,  to  permit  a  return  made  to  an  inferior  court  to  be  amended.* 

§  213.  An  officer  cannot,  as  a  matter  of  rigU,  amend  a  return 
he  has  once  duly  made.  This  would  be  to  place  at  his  discretion 
the  verity  and  consistency  of  records,  and  the  effect  and  authority 
of  the  most  .'^olemn  judgments.^  But  until  the  process  is  actually 
deposited  in  the  clerk's  office,  the  return  does  not  become  matter 
of  record,  even  tliough  tbo  officer  keep  the  process  in  his  posses- 
sion long  after  tlie  time  wlien  it  should  bo  returned ;  and  until 
the  return  is  actually  made,  the  process  is  under  his  control  and 
in  his  jMJwer,  and  he  does  not  need  the  authority  of  the  court  to 
amend  it.* 

§  214.  If  the  amendment  is  sought  in  a  mere  matter  of  form, 
such  as  affixing  the  sigjiature  of  the  officer  to  a  return  already 
written  out,  but  which  by  oversight  was  not  signed,  there  can  be 
no  good  reason  why  it  should  not  be  allowed.'  And  where  the 
mistake  is  a  mere  slip  of  the  pen,  manifest  on  the  face  of  the 
record,  and  concerning  which  no  party  who  examined  the  record 

1  Miller  r.  Shacklcford,  4  Dana,  264 ;  Fowblc  r.  Walker,  4  Ohio,  64 ;  Palmer  v. 
ThayiT.  28  Conn.  237. 

«  Planters'  Bank  v.  Walker,  3  Smcdcs  &  Marshall,  409. 

«  Fairli.ia  >•.  Paine,  2.3  Maine,  498. 

«  Smith  V.  Low,  2  Iredell.  457  ;  Harper  v.  Miller,  4  Ibid.  34  ;  Brainard  v.  Barton,  5 
Vermont,  %t.  , 

»  Miller  r.  Shacklcford,  4  Dana,  264;  Palmer  v.  Thayer,  28  Conn.  237.  In  Morns 
r.  Trustees,  15  Illinois,  266,  it  was  held  that  amendments  by  sheriflFs  of  their  returns 
are  of  course. 

0  Welsh  V.  Jov,  13  Pick.  477. 

7  Dewar  i-.  s'pcnce,  2  Wharton,  211  ;  Childs  i-.  Barrows,  9  Metcalf,  413.  In  Ten-, 
nessec  it  was  held,  that  the  endorsement  of  the  sheriflF's  return  on  the  writ  without  his 
signature  was  a  i;ood  le%7.     I^a  v.  Maxwell,  1  Head,  365. 

[IdJj 


§  210  EXECUTION   AND   RETURN   OF   ATTACHMENT.        [CIIAP.  VIl 

could  doubt,  tho  officer  will  bo  allowed  to  amend,  even  after  final 
judgment  in  tho  cause.^ 

§  215.  When  an  amendment  is  allowed,  it  relates,  as  between 
the  parties  to  the  suit,  to  the  time  when  the  original  return  was 
made;'^  and  the  amendment  and  the  original  will,  if  necessary  to 
a  proper  understanding  of  tho  doings  of  tho  officer,  bo  considered 
as  one  return.' 

§  216.  There  are  numerous  decisions  bearing  upon  the  subject 
of  amendments  of  returns  on  final  process,  which  may  have  more 
or  less  analogy  to  the  suljcct  now  before  us;  but  it  is  deemed  ad- 
visable to  consider  here  only  those  which  refer  to  metne  process. 
In  Mississippi,  it  is  held  to  bo  error  to  permit  a  shorifT  to  amend 
his  return,  after  judirniont,*  or  after  tho  return  term  of  the  writ, 
without  notice  to  the  adverse  party.'  In  Virginia,  it  has  been 
decided  that  the  court  ought  to  permit  a  shoriff  to  amend  his  re- 
turn upon  a  writ  of  ^7  quml  ilimmim,  at  any  time  before  judgment 
on  it;'  and  in  Kentucky,  a  like  amendment  was  allowed  several 
years  after  the  writ  was  executed,  there  being  tho  inquest  to 
amend  by.'^  In  Kentucky,  a  sherifT  may  amend  his  return  of  an 
attachment,  so  as  to  show  that  the  efTects  attached  were  the  prop- 
erty of  the  defendant,  as  well  before  as  after  judgment,  and  at  a 
subsequent  term ;  ^  and  may  amend  his  return  on  a  petition  and 
summons,  after  a  writ  of  error  is  sued  out  to  reverse  the  judg- 
ment.® In  Massachusetts,  an  amendment  in  one  case  was  allowed 
after  verdict ;  ^°  and  in  another  case,  where  tho  return  stated  an 
attachment  of  property,  and  a  garnishment,  but  omitted  to  state 
any  service  upon  the  defendants,  the  Supreme  Court,  after  a  writ 
of  error  was  sued  out  to  reverse  the  judgment,  continued  the  case 
until  an  application  could  bo  made  to  the  inferior  court  for  leave 

1  Johnson  v.  Day,  17  Pick.  106. 

2  Smith  V.  Lcavitts,  10  Alabama,  92. 

*  Layman  v.  Beam,  6  Wharton,  181. 

*  Hughes  I'.  Lapice,  5  Smcdes  &  Marshall,  451.  ^ 

6  Dorsey  v.  Pierce,  5  Howard  (Mi.),  173;   "Williams  i-.  Oppelt,  1  Smcdes  &  Mai 
shall,  559. 

8  Bullitt  V.  Winston,  1  Munford,  269  ;  Dawson  v.  Moons,  4  Ibid.  535  ;  Baird  v.  Rice, 

1  Call,  18. 

7  Gay  V.  Caldwell,  Hardin,  63. 

*  Mason  v.  Anderson,  3  Monroe,  293 ;  Malone  v.  Samuel,  3  A.  K.  Marshall,  350. 

9  Irvine  v.  Scobee,  5  Littell,  70. 

w  Johnson  v.  Dav,  17  Pick.  106.  ji 

[140] 


CU4P-  VII.]        EXECUTION   AND   RETURN   OF   ATTACHMENT.  §  217 

for  the  officer  to  amend  his  return ;  inthnating  that  the  inferior 
court  had  the  power  to  grant  the  leave. ^  But  after  the  case  had 
gone  hack  to  the  inferior  court,  which  refused  to  allow  the  amend- 
ment, the  Supreme  Court  declined  to  interfere,  because  the  mat- 
ter was  peculiarly  within  the  discretion  of  the  inferior  court.^  In 
Maryland,  where  a  shcritT  erroneously  made  a  return  o^  cepi  corpus, 
upon  a  writ  of  attachment,  he  was  allowed,  six  years  afterwards, 
to  amend  the  return.'  In  Alabama,  a  return  may  be  amended, 
after  demurrer.*  Where  an  officer  made  a  minute  on  the  writ  of 
the  time  and  mode  of  service,  he  was  permitted,  in  Massachusetts, 
after  he  went  out  of  office,  and  after  the  case  had  gone  into  the 
ap]X!lIate  court,  to  complete  his  return  from  his  minutes  on  the 
writ.*  But  in  Connecticut,  where  a  sheriff  attached  goods,  which 
were  suliject  to  a  previous  attachment,  and  the  court  out  of  which 
the  process  issued  allowed  him,  after  he  went  out  of  oflRcc,  to 
amend  his  return,  by  adding  to  it  that  he  attached  the  property 
subject  to  a  jirior  attachment,  it  was  held  by  the  Supreme  Court 
that  the  amendment  could  not  be  made  ;  not  only  because  no 
notice  to  the  parties  was  given  of  the  motion  to  amend,  but  be- 
cause the  returning  officer  was  no  longer  in  office.^ 

§  217.  In  all  cases  where  api)lication  is  made  for  leave  to  amend 
a  return,  there  should  be  something  to  amend  l)y,  though  this  may 
not  be  required  by  every  court  to  which  such  applications  are  ad 
dressed.  In  the  case  previously  referred  to  in  Massachusetts, 
where  the  cause  was  continued  by  the  Supreme  Court  to  give  time 
for  an  application  to  tlie  inferior  court  for  leave  to  amend  the 
return,  one  of  the  reasons  assigned  for  not  interfering  with  the 
refusal  of  the  inferior  court  to  allow  the  amendment,  was,  that 
there  was  nothing  to  amend  by,  but  the  aflidavit  of  the  officer. 
The  court  said:  "At  the  same  term  in  whicli  a  precept  is  return- 
able, to  correct  a  mistake  or  omission,  may  be  highly  proper ;  but 
for  an  officer  to  undertake,  six  years  after  a  defective  return,  to 
know  with  certainty  the  performance  of  a  particular  duty,  when 
he  is  daily  and  hourly  j)orforming  similar  duties  upon  different 
persons,  is  more  than  can  be  expected  of  men,  however  strong 
their  memory.     In  the  cases  cited,  where  amendments  have  been 

1  Thatcher  v.  Miller,  11  Mass.  413.  *  Moreland  v.  Ruffin,  Minor,  18. 

2  That.hir  v.  Miller,  13  Ma^^s.  270.  '  Arhims  v.  Robinson,  1  Tick.  461 
»  llutchins  V  Brown,  4  Harris  &  MtHenry,  498.     «  Wilkie  •■  HalL  15  Conn.  32. 

[141] 


§  '220  EXECUTION  AND  RETURN  <»K  ATTACHMENT.    [CFlAI".  VH. 

j>ermitttMl,  tlicrc  was  somotliing  on  the  n.'corcl,  by  which  the  cor- 
rection could  bo  made  ;  and  in  such  cases  there  can  bo  no  diin- 
culty."» 

§  218.  "Where  an  officer,  immediately  upon  receiving  a  writ, 
with  directions  to  attach  certain  real  estate  of  the  del»tor,  made  a 
memorandum  upon  the  writ  that  lio  attached  accordingly,  stating 
the  day  and  month,  but  afterwards,  by  mistake,  returned  that  he 
attached  on  tlie  samc!  day  of  the  suceeytling  month,  he  was  allowed 
to  correct  the  error,  tliero  being  something  to  amend  by.'-  But  an 
amendment  was  refused,  in  the  date  of  a  return,  after  a  lapse  of 
several  years,  where  the  oflicer  made  im  minute  of  lii-.  (luinirs  at 
the  time  of  the  service.* 

§  210.  In  general,  no  amendment  of  an  olTieer's  return  will  l>o 
permitted,  or  allowed  to  have  elTect,  wluMi  it  wotihl  destroy  or  les- 
sen the  rights  of  third  persons,  previously  acquired,  bona  fide,  and 
without  notice  by  tlu;  record,  or  otherwise.  Therefore,  where  an 
officer  returned  on  a  writ  of  attachment,  that  he  had  attached 
land  of  the  defendant,  on  the  »Uh  o^  June,  and  afterwards,  by  leave 
of  court,  he  was  permitte(l  to  amend  his  return,  by  substituting 
March  U)rJune,  it  was  held,  that  the  amendment  was  not  operative 
as  against  a  mortgage  of  the  land,  recorded  in  Mdi/,  though  the 
evidence  was  sufficient  to  satisfy  the  court  that  the  attachment  was 
levied  in  March,  and  that  the  return,  as  first  made,  wa.s  a  mistake.'* 

§  220.  But  if  the  party  who  has  acquired  rights  which  woula 
be  injuriously  afTected  by  the  amendment,  had  notice,  actual  or 
constructive,  that  the  officer  had  done  his  duty,  and  that  there 
was  an  omission,  by  mistake,  in  his  return,  which,  if  supplied, 
■would  perfect  the  officer's  proceedings,  or  if  that  fact  is  clearly 
manifest  on  the  record,  he  cannot  avail  himself  of  the  rule  above 

1  Tliatchcr  v.  Miller,  1.3  Mass.  270;  Emerson  v.  Upton,  9  Pick.  167. 

-  Haven  v.  Snow,  14  rick.  28;  Guy  v.  Caldwell,  Hardin,  63;  Palmer  i-.  Thayer,  28 
Conn.  237. 

a  Hovey  v.  Wait,  17  Pick.  196 ;  Fairfield  v.  Paine,  23  Maine,  498. 

*  Emerson  v.  Upton,  9  Pick.  167  ;  Putnam  i'.  Hall,  3  Ibid.  445  ;  Hovey  r.  Wait,  17 
Ibid.  196;  Williams  c.  Brackett,  8  Mass.  240;  Means  p.  Osgood.  7  Maine,  146;  Berry 
V.  Spear,  13  Ibid.  187;  Bannister  r.  Hig;:inson,  15  Ibid.  73;  Oilman  v.  Stct.son,  16 
Ibid.  124;  Evelcth  v.  Little,  Ibid.  374;  Fairfield  v.  Paine,  23  Ibid.  498;  Bowman  v 
Stark,  6  New  Hamp.  459  ;  Davidson  v.  Cowan,  1  Devereux,  304 ;  Ohio  Life  Ins.  &  Tr 
Co.  r.  Urbana  Ins.  Co.,  13  Ohio,  220. 
[142] 


CHAP.  \ai.]        EXECUTION    AND   RETUEN   OF   ATTACHMENT.  §  220 

laid  down.     Thus,  A.  sued  out  an  attachment  against  B.  on  the 
19th  of  Xovcniber ;  on  the  next  day,  C.  likewise  obtained  an  at- 
tachment against  B.     The  same  attorney  acted  for  both  plaintiffs, 
having  a  full  knowledge  of  all  the  facts,  and  directing  the  order 
of  the  attachments.     The  sheriff,  in  returning  A.'s  attachment,  by 
mistake,  dated  the  levy  on  the  19th  of  December,  while  he  returned 
C.'s  attachment  as  having  been  levied  on  the  20th  of  November; 
thus  giving  the  second  attachment  priority  over  the  first.     At  the 
return  term  of  the  writs,  tlie  sheriff  obtained  leave  to  amend  his 
return  on  A.'s  writ  by  inserting  Noveuiher  instead  of  December; 
and  it  was  held,  that  this  amendment  was  effective  against  C, 
because  he  had,  through   his  attorney,  constructive  notice  that 
A.'s  attachment  was  anterior  in  time  to  his.^     So,  where  a  writ  of 
attachment  was  issued  and  levied  on  hind,  on  the  4th  of  November, 
18113,  and  was  actually  returned  at  the  term  next  ensuing  its  date, 
and  judgment  was  rendered  at  the  June  Term,  1834,  though  the 
Bheriff  returned  that  he  had  executed  it  on  the  4th  of  November, 
1834 ;   it  was  held,  that  the  sheriff  might  amend  his  return  ac- 
cording to  the  fact,  and  that  the  amendment  should  be  effective 
against  a  grantee  of  the  defendant  under  a  deed  dated  November 
2t),  1833,  because  the  record  clearly  showed  the  mistake,  and  no 
one  could  by  jxjssiliility  be  misled  or  injured  by  it.- 

»  Havt-n  >:  Snow,  U  Pick.  28. 

»  John*..n  r.  Duy.  17  Tick.  106;    ChilJs  ».  Barrows,  9  Mctcalf,  413;   Fairfield  r. 

Piunc,  23  Maine,  498. 

[143] 


§  222  EFFECT   AND   OFFICE   OF   AN   ATTACHMENT.       [CHAP.  VllL 


CHAPTER    TTTT. 

EFFECT   AND   OFFICE   OF   AN   ATTACHMENT. 

§  221.  The  mere  issue  of  an  nttacliment  has  no  force  as  against 
the  defondajit's  j)roperty,  either  with  reference  to  his  rights,  or  to 
those  of  third  j)erson8,  therein;^  nor  has  its  lodgement  in  the 
hands  of  an  officer;'  hut  its  offoct  is  to  he  dated  from  the  time 
of  its  actual  service.'  And  when  questions  arise  as  to  the  title 
of  property  claimed  through  an  attachment,  and  the  judgment 
and  execution  following  it,  the  rights  so  accjuired  look  hack  for 
their  inception,  not  to  the  judgment,  hut  to  the  attachment.* 

§  222.  Tho  levy  of  an  attachment  is  no  satisfaction  of  the 
plaintilT's  demand,  as  that  of  an  execution  is,  under  some  circum- 
stances;'^ nor  does  it  change  the  estate  of  the  defendant  in  tlio 
property  attached;*  though  to  the  extent  of  its  lien,  his  ahsoluto 
property  is  diminished.'      Nor  does  it  take  away  his  power  of 

1  Means  r.  Winslow,  1  Smcdes  &  Marshall,  Cli'y  R.  449 ;  Williamson  v.  Bowie,  6 
Munfonl,  176;  Wallace  v.  Forest,  2  llunis  &  Mcllcury,  2G1  ;  Tomlinson  v.  Stiles,  4 
DutclifT,  201. 

'  Crowninsliield  v.  Strobcl,  2  Brcvnnl,  80 ;  Robcrtaon  ».  Forrest,  Ibid.  466  ;  Bethune 
V,  GiL-oii,  Ibid.  501  ;  Crocker  v.  Uadclitle,  3  Ibid.  2^}. 

8  dates  r.  nuslinoll,  9  Conn.  .WO;  Sewill  r.  Sava;;e,  1  B.  Monroe,  260;  Nutter  w. 
Connctt,  .T  Ibid.  199;  Fitch  r.  Waite,  5  Conn.  117  ;  Learned  r.  Vandenbur;:h,  S  How- 
ard Tract.  K.  77  ;  I'ond  c.  (Jriffin,  1  Alabama,  678;  Crowninsbield  r.  StrolK-l.  2  Brevard, 
80;  Robertson  r.  Forrest,  Ibid.  466;  Betliunc  r.  Gibson,  Ibid.  501  ;  Crocker  v.  Rud- 
cliffe,  3  Ibid.  23;  Zei^'enha;,'en  r.  Doc.  1  Indiana.  296;  Burkhardt  r.  McClellan,  15 
Ablxitt  I'rHct.  R.  243,  nod';  TutTts  r.  Manlove,  14  California,  47;  llaldeman  i-.  Ilills- 
borou;iii  &  Cin.  R.  R.  Co.,  2  Handy,  lol  ;  Kuhn  v.  Graves,  9  Iowa,  303. 

*  Tyrcll  r.  Roiintree,  7  Peters,  4G4 ;  .'^tejiben  r.  Thayer,  2  Bay,  272;  Am.  E.\.  Bank 
V.  Morris  Canal  &  Banking  Co.,  6  Hill  (N.  Y.),  362;  Martin  r.  Dryden,  6  Illinois 
(1  Gilnian),  187;  Redus  v.  Wot^ord,  4  Sniedes  &  Marshall,  579;  Brown  v.  Williams, 
31  Elaine,  403;  Tappan  r.  Harrison,  2  Humphreys,  172;  Oldham  v.  Scrivener,  3  H. 
Monroe,  579;  Lackey  i'.  Scik'rt,  23  Missouri,  85;  Hannahs  r.  Felt,  15  Iowa,  141  ; 
Cockey  i\  Milne's  Lessee,  16  Maryland,  200. 

^  McBride  v.  Farmers'  Bunk  of  Salem,  28  Barbour,  476.  Sed  contra,  Yourt  v.  Hop 
kins,  24  Illinois,  326. 

6  Bifxelow  V.  Wilson,  l.Pick.  485;  Blake  v.  Shaw,  7  Mass.  505;  Starr  r.  Moore,  3 
McLean,  354  ;  Tiernan  v.  Murrah,  1  Robinson  (La.),  443  ;  Crocker  v.  Fierce,  31  Maine, 

■  177;  Wheeler  v.  Nichols,  32  Ibid.  233;  Perkins  r.  Norvell,  6  Humphreys,  151  ;  Snell 
V.  Allen,  I  Sivan,  208;  Oldham  v.  Scrivener,  3  B.  Monroe,  579;  IlaldcmaD  r.  Uills- 
boroujih  &  Cin.  R.  K.  Co.,  2  Handy,  101. 

7  Grosvenor  v.  Gold,  9  Mass.  209. 

[144] 


CHAP.  VIII.]        EFFECT   AND   OFFICE   OF   AN    ATTACHMENT.  §  223 

transfer,  cither  absolutely  or  in  mortgage,  subject  to  the  lien 
of  the  attachment.^  Xor  does  the  attaching  plaintiff  acquire  any 
property  thereby.^  Xor  can  he  sell  the  property  by  virtue  of  the 
attachment,  before  judgment  and  execution  ;  but  can  do  so  only 
under  an  order  of  court,  or  of  the  judge  who  issued  the  writ.^ 
Nor  has  the  court  authority  to  order  the  attached  property  to  be 
delivered  to  the  pUiintitT.*  Therefore,  where  an  attaching  creditor, 
after  obtaining  judgment  in  the  action,  demanded  the  attached 
goods  of  the  officer,  who  refused  to  deliver  them,  and  the  creditor 
thereujMjn  sued  him ;  it  was  decided,  that  it  was  not  the  duty  of 
tiie  ofhcer,  but  would  have  V)een  contrary  to  his  duty,  to  make 
such  a  delivery ;  that  the  goods  were  in  the  legal  custody  of  the 
officer,  who  was  accountalde  for  them  ;  and  that  the  general  prop- 
erty in  them  was  not  changed  until  a  levy  and  sale  by  execution.^ 

§  223.  It  is  a  well-settled  principle,  that  an  attaching  creditor 
can  ac(iuire  through  bis  attachment  no  higher  or  better  rights  to 
the  property  or  assets  attached  than  the  defendant  had  ivhen  the 
attachinmt  took  place,  unless  he  can  show  some  fraud  or  collusion 
by  which  his  rights  are  impaired.  No  interest  subsequently  ac- 
quired l>y  tlie  defendant  in  the  attached  property  will  be  affected 
by  the  attachment.''  If  the  pro{)erty,  when  attached,  is  subject  to 
a  lien  honn  jiih  placed  uj>on  it  by  the  defendant,  that  lien  must  be 
res|x'cted,  and  the  attachment  postponed  to  it.'  And  this  rule  was 
once  held  to  extend  to  at  least  <jne  description  of  what  have  been 
termed  »ilent  liens,  that  is,"  liens  existing  merely  by  operation  of 
law.  Un<l.?r  this  view  it  was  held  by  Grihr,  J.,  on  the  circuit, 
that  the  sale  of  a  shij)  under  attachment  had  no  effect  to  devest  a 
lien  in  a<lmiially  for  mariners'  wages.*     But  subsequently,  by  tlie 

»  Dip  low  V.  WillMin,  1  Pick.  485;  Dciiiiy  v.  Willanl,  11  Ibid.  519;  Fcttyplacc  v. 
Dutch.  1.1  Il.i>l.  .3S8;  Aniol.l  r.  Brown,  24  Il.id.  89;  Warner  v.  Eventt,  7  B.  Monroe, 
262;  Wlufk-r  r.  Nichols,  32  .Maine.  2X\;  Calkins  r.  Lockwood,  17  Conn.  154. 

3  BiKi'low  v.  Willson.  1  Tick.  485;  Crocker  v.  Rudeliin-,  .3  Brevard,  23;  Willing  i'. 
Blocker,  2  Seryrjuit  &.  Kawie,  221;  Owinjjs  r.  Norwood,  2  Harris  &  Johnson,  96; 
Godilard  i:  Pi-rkin-s  9  New  Ilamp.  489 ;  Austin  r.  Wade,  Pennin-ton,  sec.  ed.  727. 

'  McKay  v.  Harrowcr,  27  Barhoiir,  463. 

«  Welch  r..IamUon,  I  Howanl  (Mi.),  160. 

*  Blttke  r.  Shaw,  7  M.i.^s.  .->()j. 

'  Crocker  v.  Pierce,  31  Maine,  177. 

'  Nathan  v.  Giles.  5  Taunton,  558,  576 ;  Baillio  ».  Poissct,  8  Martin,  N.  6.  337 ;  Fra- 
iler V.  Willcox,  4  Robinson  (I,a.),  517  ;  Peck  r.  WebVvr,  7  Howard  (Mi.),  658;  Parker 
V.  Farr,  2  Browne,  331  ;  U<cvcs  r.  .Johnson,  7  Halstcd,  29  ;  .Meeker  r.  Wilson,  1  Gulli- 
sofi,  419;  Haldenian  r.  Hillsliorough  &  Cin.  R.  R.  Co.,  2  Handy,  101. 

»  Taylor  r.  The  Royal  Saxon,  1  Wallace,  Jr.  311. 

10  [14.3] 


§  224  EFFECT    AND   OFFICE   OF   AN    ATTACHMENT.        [cilAl'.  VIII 

Supreine  Court  of  P('nnsylv;iiii:i,  ami  liy  that  of  tho  UiiUlmI  Slait-s, 
it  was  decided  that  an  attacliineiit  issued  by  a  State  court  and 
levied  upon  a  vessel,  was  not  defeated  by  a  subsequent  proceeding 
in  rem  in  Admiralty  for  such  wages. ^ 

§  224.  When  an  attachment  is  served,  a  lien  on  the  pioporty 
attached  is  created  which  nothing  subsequent  can  destroy,  but  the 
dissolution  of  the  attachment.-  It  is  beyond  the  power  of  a  State 
Legislature  to  pass  an  act  destroying  it.'  And  as  to  the  defeinlant, 
though,  as  we  have  just  seen,  his  power  of  alienation,  subject  to  tho 
attachment,  is  not  impaired,  yet  no  subsequent  act  of  that  descrijv 
tion  on  his  part  can  defeat  the  attachment.* 

That  the  service  of  an  attachment  constitutes  a  lien,  seems  to 
have  been  generally  conceded,  until  the  late  Justice  Stohy,  in  tho 
course  of  the  administration  of  the  bankrupt  Act  of  1S41,  ex- 
pressed a  dilTerent  view.  That  distinguished  jurist,  in  an  elabo- 
rate opinion,  held,  that  an  attachment  on  me»ne  process  is  not  a 
lien,  either  in  the  sense  of  the  conuuon  law,  or  of  the  maritime 
law,  or  of  ecjuity  ;  but  only  a  contingent  and  conditional  charge, 
until  the  jutlgment  and  levy.*  This  opinion  was  subsequently 
sanctioned  and  adopted  by  the  Supreme  Court  of  Louisiana;* 
while  against  it,  in  cases  arising  under  the  same  act,  we  llnd  tho 
judgments  of  the  Supreme  Courts  of  Maine,'  Massachusetts,'  New 
Hampshire,®  New  Jersey,^''  and  Mississippi ;"  of  the  District  Court 

1  Tttvlor  F.  Carrvl,  24  Penn.  State,  259,  8.  c.  20  Howard  Sup.  Ct.  58.3. 

2  Go'oru  V.  M'Daniil,  1  M'Conl.  48i»;  lV<k  v.  WiMkt,  7  Howanl  (Mi.),  65S ;  Smith 
V.  Bradstnrt,  Ifi  Pirk.  204  ;  Tin-  IVoj.K'  r.  CatiKTon,  7  Illinois  (2  (iiinmn).  468;  Vin- 
son V.  Ilutiillebton,  Cooko,  254;  Van  Ix)an  r.  Kliiif,  10  Johns.  129;  Dolm  v.  Haker, 
3  Arkansas,  509  ;  Davt-njwrt  v.  Lacon,  17  Conn.  278 ;  Siliacklctt  &  Glydc's  Apiaal,  14 
IVnn.  Stato,  326;  Erskinc  r.  St.iloy,  12  Li'i;:h,  406 ;  M(M)ro  r.  Holt,  10  Orattan.  284, 
Cary  i-.  (ire;:;:,  3  Stewart,  4.33;  Murray  r.  Gilwon,  2  l/ouisiana  Annual,  311  ;  Hcrvcy 
V.  Chaniiiion,  11  lluniphroys,  509;  Sncll  v.  Allen,  1  Swan,  208;  Zei-cnliaKon  i-.  Doc, 
1  Tn.liana,  290;  Pienjon  v.  Rohb,  4  Illinois  (3  Scammon),  139;  Martin  v.  Dryilen.  6 
Illinois  (1  Gihnan),  187;  Lyon  v.  Sanford,  5  Conn.  544;  Lackey  v.  Seibcrt,  23  Mis- 
souri, 85;  Hannahs  c.  Felt,  15  Iowa,  141. 

8  Hannahs  r.  Felt,  15  Iowa,  141. 

*  M'Hride  r.  Floyd,  2  Bailey,  209  ;  Ilancy  v.  Grymes,  8  Martin,  395  ;  Bach  v.  Gofxl- 
rich,  9  Hohinson  (La.),  391  ;  Franklin  Fire  Ins.  Co.  v.  West,  8  Watts  i  Sergeant,  350. 
6  Foster's  case,  2  Story,  131  ;  Bellows  &  Peck's  case,  3  Ibid.  428. 
6  Fisher  r.  Vose,  3  Hohinson  (La.),  457. 
1  Franklin  Bank  v.  Batchelder,  23  Maine,  60. 

8  Davenport  v.  Tilton,  10  Metcalf,  320. 

9  Kittred;:e  i'.  Warren,  14  New  ILimp.  509;  Kittrcdge  r.  Enacrson,  15  Ibid.  227; 
Butruni  V.  Seaver,  16  Ibid.  160. 

1'^  Vreeland  v.  Brown,  1  Zabriskie,  214. 
"  Wells  V.  Brandcr,  10  Sincdes  &  Marshall,  348. 
[146] 


CHAP.  V\n.]       EFFECT   AND   OFFICE   OF   AN  ATTACHMENT.  8  225 

of  tlic  United  States  for  Vermont  ;i  and  of  the  late  Justice 
Thompson,  of  the  Supreme  Court  of  the  United  States; 2  and, 
under  the  General  Bankrupt  Act  of  1800,  that  of  the  Supreme 
Court  of  Connecticut.^  At  least  three  of  these  judgments  — 
those  in  Massachusetts,  New  Hampshire,  and  New  Jersey  —  were 
an  immediate  result  of  Justice  Story's  ruling,  and  hy  eacli  of 
those  courts  his  opinion  was  fully  and  very  ably  reviewed.  When 
to  these  adverse  opinions  we  add  tliose  of  the  several  State  courts 
just  referred  to,  we  can  have  no  hesitation  in  regarding  the  learned 
judge's  views  as  overborne  by  the  weiglit  of  authority. 

§  225.    In  connection  witli  the  lien  acquired  by  an  attaching 
creditor  lias  come  up,  in  different  forms,  the  question  of  his  riglit 
to  secure  tlie  benefit  of  his  lien,  as  against  fraudulent  conveyances 
of,  and  incuml)rances  uj)on,  tlie  attaclied  property.      Tlie  first 
shape  this  question  assumed  was,  as  to  the  attaching  creditor's 
right  to  maintain  a  creditor's  bill  in  equity  to  set  aside  such  a 
conveyance   or   incumljrance.     Tbe   doctrine  tliat  a  creditor   at 
large,  before  he  obtains  judgment,  is  not  entitled  to  such  a  rem- 
edy, is  familiar  to  tlie  legal  mind.     "The  reason  of  the  rule," 
said  Chanc'llor  Kent,  "  seems  to  be,  that  until  the  creditor  has 
established  his  title,  he  has  no  right  to  interfere,  and  it  would  lead 
to  an  unnecessary  and  perhaps  a  fruitless  and  oppressive  interrup- 
tion to  the  exercise  of  the  debtor's  rights.     Unless  he  has  a  certain 
claim  upon  the  property  of  the  debtor,  he  lias  no  concern  with  liis 
frauds." <     Such,  duubtless,   is  the  general  rule.     That,  like  all 
general  rules,  it  is  subject  to  exceptions,  was  held  by  the  Court  of 
Appeals  of  Kentucky,  in  sustaining  such  a  biU  by  a  creditor  at 
large,  where  the  debtor  resided  or  had  removed  out  of  the  State, 
so  as  to  prevent  a  judgment  being  obtained  against  him  at  law.* 

»  Downer  r.  Brackctt,  f>  Law  Reporter,  .392 ;  Rowcll's  case,  6  Ibid.  300.  The  same 
caaes  arc  n-portcd  in  21  Vermont,  599  and  620. 

•  Haughton  r.  Eiistis,  5  Law  Reporter,  505. 

•  Inirrahain  v.  Phillips,  1  Day,  117. 

•  \Vi;:;,'ins  V.  Armstron-,  2  .Johns.  Ch.  U4.     Sec  Mills  v.  Block,  .30  Barbour,  549. 

»  Scott  f.  McMillan,  1  Littcll,  302.  The  views  of  the  court  were  thus  expressed: 
"Generally  speakin;;.  creditors  must  show  themselves  to  be  such,  by  obtaininj,'  judg- 
ment at  law,  iK-fore  they  will  be  allowed  to  apply  to  a  court  of  equity  to  investigate  any 
fraud  alleged  to  have  been  committed  by  their  debtor,  in  alienating  his  property.  The 
necessity  of  thus  first  obtaining  judgment  at  law,  before  application  is  made  to  a  court 
of  chancery,  does  not,  however,  arise  from  the  want  of  jurisdiction  in  the  court  of  chan- 
cery to  investigate  fraud;  but  it  results  from  the  circumstance  of  the  demand  which 
constitutes  the  creditor,  being  coj^nizable  at  law,  and  the  necessity  of  that  demand  be- 

[147] 


§  22')  F.FFKCT    AND   OFFICE   OF    AX    ATTACHMENT.        [CIIAI'    VIII. 

In  clilTercnt  States  the  attempt  has  been  made  to  estal.li>h  an«jtlier 
exception,  in  favor  of  attaching  creditors.  In  New  York,  a  bill  in 
favor  of  such  a  creditor  was  once  sustained  by  the  Court  of  Chan- 
cery ;^  but  this  was  contrary  to  the  uniform  course  of  decision  in 
that  State,  before  and  since.  In  Illinois,^  and  Missouri,"  the  right 
to  maintain  such  a  bill  was  denied.  On  the  other  hand.  New 
Hampshire*  and  New  Jersey  *  have  held,  that  an  attachment  con- 
fbrs  a  lien,  in  virtue  of  which  the  bill  may  be  maintained^  In 
New  York,  too,  it  was  decided  that  an  attaching  creditor  is  not, 

in;?  ostahlishid  by  the  detcnnination  of  a  court.  octin«  within  iw  legitimate  liphcrc ; 
ami  wliiiuver  the  deimiiia  is  so  e.-.tuhli.-.he.l.  the  «ourt  of  eliamery,  uttiiiK  within  the 
a(kn()wlr-.l;;nl  limit*  «f  it*  jiiriMliotiun,  will  wurvh  out  the  fraud,  and  clear  awuy  all 
obsitnirtions  to  the  effectual  exc«-ution  of  the  jud;:ment  at  law. 

"  Notwith.Htandinj;.  however,  it  may,  in  the  Kineral.  l>e  ni-vcssary  for  the  cre.litor  to 
c.stal.li-!i  his  di  iiiiiiid  at  law  hefore  he  apjdicM  to  a  court  of  chuiucr>-,  it  cannot  be  ud- 
mittid  to  »«  indisjxn.table  in  ever)-  caM*.  CiutM  may  occur,  and  the  |ire«»nt  ca-ne  wa« 
of  that  character  when  the  bill  wjia  filed,  where,  from  the  ubM-nce  of  the  del>tor  from 
the  country,  the  cretlitor  would  not  U-  enabled  to  c.stubli.-h  his  demand  at  law.  At 
comnion  law,  the  creditor,  in  such  a  can-.  fnij;bt  jk  rhnp«  establish  his  dcn.anil  at  law, 
by  pHMCcdin^  to  outlaw  the  defendant ;  but  in  this  <ountry  after  a  return  of  •  no  inhab- 
itant ■  on  the  writ,  the  suit  is  directed  to  abate,  and  alUr  an  abatement  there  can  U-  no 
proceedings  to  outlawry.  r<»scs..iuK.  therefore,  no  means  of  e-.tabli^hinK'  his  demand 
at  law,  it  wouhl  se.ni  the  creditor  ou^ht,  without  first  commencin;:  an  action  at  law,  to 
be  allowed  to  apply  to  a  court  of  e<|uity  for  relief.  It  is  not  unusual  for  courts  of 
ctiuity  to  entertain  jurisdiction  and  ^ive  relief,  wliertvcr  the  principles  by  which  tho 
ordinary  courts  arc  cuideil  in  their  administration  of  justice,  ^'ive  ri»;ht,  but  from  acci- 
dent, or  fraud,  or  defect  in  their  mode  of  proceeding,  those  courts  can  afford  no  rem- 
edy, or  cannot  give  the  most  complete  remctly.  It  is  upon  this  principle,  of  a  defect  in 
the  UKxlc  of  proceedings  at  law,  tliat  the  jurisdiction  of  many  cuu-n-s  Iuls  been  trans- 
lated from  a  court  of  law  to  a  court  of  chancery  ;  and  if  such  a  defi-ct  Ik.'  sufhcient  to 
transfer  a  cause,  otherwise  cognizable  at  law,  to  a  court  of  chancer)-,  a  J'urtiuri  >hould 
it  be  suflicient  to  authorize  the  chanc-ellor  to  take  cognizam-c  of  a  casv  involving  matter 
properly  of  equitable  jurisdicti«)n,  sooner  than  he  would  have  done,  if  no  such  defect 
in  the  proceeilings  at  law  existed. 

"  Fraud  is  proj^-rly  cognizable  in  a  court  of  chancery,  as  well  as  in  a  court  of  law ; 
and  although,  when  committed  by  debtors  in  conveying  their  proi^-rty  to  the  prejudice 
of  creditors,  the  chancellor,  in  ordinary  cases,  may  refuse  to  inquire  into  the  fraud,  un- 
til the  creditor,  by  obtaining  judgment  at  law,  establishes  the  justice  of  his  demand; 
yet,  when  tlic  debtor,  by  ab.senting  himself  from  the  country,  renders  all  pr.>cecdings  at 
law  against  him  ineHeetual,  the  chancellor,  regardless  of  his  practice  in  ordinary  cases, 
will  lay  hold  of  the  property  alleged  to  W  fraudulently  conveyed,  examine  the  fraud, 
imiuire  into  the  justice  of  the  creditor's  denumd,  and  finally,  by  Jicting  on  the  thing, 
grant  the  appropriate  relief.  It  i.-<  true,  according  to  the  ancient  practice  in  chancery, 
no  decree  could  be  pronounced  against  a  defendant,  without  the  personal  service  of  i»ro- 
cess;  but  wc  hav«,  in  this  country,  a  statute  authorizing,  in  all  suits  in  chancery 
again.^t  ab.^cnt  defendants,  an  order  for  publication ;  and  the  publication,  when  made, 
is,  for  all  purposes  of  trial,  equivalent  to  the  personal  service  of  process." 

1  Falconer  r.  Freeman,  4  Sandford,  Ch.  565. 

2  Bigelow  V.  Andress,  31  Illinois,  .322. 
8  Martin  v.  Michael,  2.3  Missouri,  50. 
*  Stone  V.  An.lerson,  6  Foster,  506. 

6  Hunt  V.  Field,  1  Stockton,  tJe,  overruling  Melville  v.  Brown,  I  llarri.son,  -363. 

[148] 


CHAP.  VIIl]        EFFECT   AKD   OFHCE   OF   AN   ATTACHMENT.  §  225 

before  he  obtains  jmlj^inent,  entitled  to  impeaoh  the  hnna  fides  of 
a  judgment  confes^^ed  hy  a  debtor  to  a  third  person  before  the 
attachment  was  hjvied.^  Sueh  is  the  i)Osition  of  this  branch  of 
the  main  question. 

But  it  has  come  up,  substantially,  in  another  form,  in  the  case 
of  the  attachment  of  personal  property  in  the  hands  of  a  person 
other  than  the  defendant,  claiming  it  under  a  transfer  from  the 
defendant.  In  such  case,  can  the  attachment  plaintiff,  or  the  offi- 
cer wIjo  levied  the  writ,  when  sued  for  trespass  by  the  party  claim- 
ing under  the  defendant's  transfer,  show  in  defence  that  the 
alleged  transfer  was  fraudulent  as  against  the  attaching  creditor? 
Against  the  right  to  set  up  such  a  defence,  the  same  ground  is 
taken  as  against  the  right  of  such  a  creditor  to  maintain  a  credi- 
tor's bill,  namely,  that  he  is  only  a  creditor  at  large  until  he  lias 
obtained  a  judgment.  On  tiie  otlier  hand,  it  is  urged  that  the 
statute  relative  to  fraudulent  conveyances  is  not  by  its  terms  con- 
fined to  judgment-creditors ;  that  such  conveyances  are  void  as  to 
all  creditors  who  elect  to  treat  tliera  as  void  by  adopting  the  pro- 
cess which  tlie  law  provides ;  that  attachment,  as  a  provisional 
remedy,  is  one  of  these,  the  command  of  which  is  the  same,  in 
sub>tunce,  as  tliat  of  an  execution  ;  and  tliat  a  levy  under  it  is  a 
lien  whicli  aulliorizes  the  party  claiming  through  it  to  assail,  as 
fraudulent,  transfers  of  the  property  levied  on.  The  whole  sub- 
ject came  under  discussion  before  the  New  York  Superior  Court, 
and,  after  an  elaborate  review  of  the  authorities,  the  court  held, 
that  the  defence  was  available  to  an  officer  executing  an  attach- 
ment.* Afterwards  it  came  before  the  Court  of  Appeals  of  that 
State,  by  which  the  same  doctrine  was  maintained  ;  that  court 
liolding  that  an  attaching  creditor  is  not  to  be  deemed  a  mere 
creditor  at  large,  but  a  creditor  having  a  specific  lien  upon  the 
property  attached,  and  that  the  sheriff,  as  his  bailee,  has  a  like 
lien,  and  is  entitled  to  show  that  a  supposed  sale  of  the  attached 
property  was  fraudulent  as  against  the  attaching  creditor.^     This 

»  Bvntley  r.  Goodwin,  15  Abbott  Pract.  R.  82;  8.  c.  38  Barbour,  633;  Brooks  r. 
Stone,  19  Howard  Pract.  U.  .395.     Sec  Wintrin;,'ham  v.  Wintrin;,'h:im,  20  John.s.  296. 

■^  Thayer  >•.  Wilkt.  5  Bosworth,  .344 ;  8.  c.  9  Abbott  Pract.  U.  325.  Sec  Skinner  v- 
Oettin;.'er,  14  Ablxjtt  Pract.  K.  109. 

»  Hall  c.  Stryktr,  27  New  York.  596 ;  overmlinjr  the  decision  of  the  Supreme  Court 
in  the  same  case,  as  rei>orted  in  29  Bartwur,  105,  and  9  Abbott  Pract.  R.  .342.  And  see 
Rinchey  r.  Stryker,  28  New  York,  45,  where  the  court  adhered  to  its  previous  decision 
in  HiiU'u.  Stryker.  And  where  it  is  allowcTl  to  a  sheriff  to  dispute  a  claim  to  attached 
property,  on  the  ground  that  the  sale  under  which  it  is  claimed  adversely,  was  fraudu- 

[1401 


§  2-27  EFFECT   AND   OFFICE   OF   AN    ATTACIIMENI.       [cllAr.  VIIl. 

is  virtually  an  ahaiulonmoiit  of  the  wliule  ground  of  c«.ntrov.T-y 
as  to  the  riglit  of  such  a  creditor  to  maintain  a  oieditor's  bill ;  and 
throws  the  weight  of  the  authority  of  Ne\f  York  in  favor  of  a 
iloctriuo,  which  is  too  just  in  principle  and  l^eneliccnt  in  results, 
to  be  long  overborne  by  the  single  objection  that  none  but  a  judg- 
meat-creditur  can  maintain  such  a  bill. 

§  220.  The  lien  of  an  attachment  extends  only  lo  the  property 
which  has  been  actually  subjected  to  its  action.  It  cannot  con- 
structively reach  the  property  of  one  who  has  l>cen  summoned  as 
garnishee.  Therefore,  where  one  who  had  been  so  summoned 
died,  pending  the  proceedings  against  him,  and  his  administrator 
was  made  a  party  to  the  suit  as  his  reproscntative,  and  judgment 
was  rendered  against  the  administrator,  on  account  of  a  debt  due 
from  the  intestate  to  the  attachment  defendant,  it  was  held,  that 
this  judgment  was  not  entitled  to  priority  over  any  other  debts  of 
the  intestate,  as  the  attachment  was  no  lien  u|X)n  his  elTects,  and 
the  plaintilT  could  acquire  no  greater  interest  under  the  attach- 
ment proceedings,  in  the  debt  of  the  garnishee  to  the  defendant, 
than  the  defendant  himself  would  have  had  if  no  attachment  had 
been  made.' 

§  227.  The  lieu  of  an  attachment  is  not  limited  to  the  amount 
for  which  the  writ  commands  the  officer  to  attach ;  but  is  com- 
mensurate with  the  amount  of  the  judgment  and  costs,  though 
that  be  greater  than  the  sum  which  the  jireccpt  of  the  writ  re- 
quired the  officer  to  secure.-  But  this  is  not  to  be  understood  as 
authorizing  a  judgment  in  the  attachment  suit  for  any  other  causo 
of  action,  tiian  that  for  which  the  attachment  was  issued.  If  the 
plaintilT  take  judgment  for  more  than  was  then  due  him,  with  in- 
terest, he  cannot,  as  against  other  attaching  creditors,  sustain  his 
attachment  for  the  excess.  Thus,  where  a  debt  was  payable  by 
instalments,  one  falling  due  in  May,  and  one  in  September ;  and 
in  the  intervening  July,  an  attachment  was  sued  out  on  that  which 
matured  in  May  ;  and  in  the  following  December  the  plaintiff  took 
judgment  for  both  instalments  ;   it  was  held,  that,  as  against  a 

lent  and  void,  he  niiiv,  on  the  same  ground,  follow  the  proceeds  of  the  property  in 
money,  where,  as  in  New  York,  he  is  vested  with  a  right  of  action  to  recover  such  prop- 
erty.    Kelly  1-.  Lane,  28  Howard  Pract.  R.  128. 

1  Parkerr.  Farr,  2  Browne,  3-31. 

2  Searle  v.  Preston,  33  Maine,  214. 

[loOj 


CHAP.  Vlll]       EFFECT   AND   OFFICE   OK   AN   ATTACHMENT.  §  229 

junior  attachcr,  he  could  hold  only  the  amount  of  the  May  mstal- 
ment,  with  interest.^ 

§  228.  As  the  whole  office  of  an  attachment  is  to  seize  and  hold 
property  until  it  can  be  subjected  to  execution,  its  lien  is  barren 
of  any  iK-neficial  results  to  the  plaintiff,  unless  he  obtain  judgment 
against  the  defendant,  and  proceed  to  subject  the  property  to  exe- 
cution. A  judgment  for  the  defendant,  therefore,  destroys  the 
lien,  and  remits  the  parties  to  their  rcsi)cctive  positions  before  the 
attachment  was  levied.^ 

§  220.  An  attachment  takes  precedence  of  a  junior  execution  ;' 
and  a  purchaser  of  land  under  an  attachment,  will  prevail  against 
a  purchaser  under  a  judgment  obtained  after  the  levy  of  the 
attachment,  though  the  judgment  in  the  attachment  suit  was  sub- 
sequent to  the  other.*  The  strength  of  this  doctrine  was  illus- 
trated in  a  case  in  Pennsylvania,  under  a  statute  which  declared 
that  "  Every  writ  of  attachment  executed  on  real  estate  sliall  bind 
the  same  njainist  piirchaaers  and  mortgageeBy  On  the  18th  of 
January,  1847,  an  attachment  was  executed  on  real  estate.  In 
November,  1848,  judgment  was  obtained  in  the  action.  In  the 
mean  time,  several  other  creditors  of  the  defendant  sued  out 
attachments,  and  caused  them  to  be  executed  on  the  same  real 
estate ;  and  in  all  those  cases  the  defendant  confessed  judgments 
in  April,  May,  and  June,  1848.  The  plaintiffs  in  these  judgments 
claimed  priority  of  the  first  attaching  creditor,  because,  though 
their  attac)uucnts  were  later  than  his,  their  judgments  were  ear- 
lier ;   and  it  was  contended,  on  their  behalf,  that  the  lien  of  the 

»  Syracuse  Citr  Bank  v.  Coville,  19  Howard  Pract.  K.  385.  The  question  does  not 
appear  to  have  U.cu  raided,  whether  tlie  tukiii-  of  the  judgment  for  more  than  was 
sued  for  did  not  wholly  di>solTe  the  attachment  as  to  suhsojuent  attachcrs.  Had  it 
been,  the  court  would  h'ardiv  have  he^<itated  to  sustain  it,  as  was  done  in  a  similar  case 
in  Michigan.  Hale  v.  ChaiidliT,  .3  Michigan,  531.  Such  a  ruling  would  have  been 
fully  bpheld  by  the  cases  cit.d.  jKjst,  §  282.  And  sc-c  Tunnison  i-.  Field,  21  Illinois, 
109;  Austin  v.  Burffrtt,  10  Iowa.  302. 

*  Clap  r.  Bell,  4  Mass.  99 ;  Johnson  r.  Edson,  2  Aikens,  299 ;  Suydam  v.  Hugge- 
fonl,  23  Pick.  405  ;  Hale  v.  Cummings,  3  Alabama,  398. 

»  Goore  r.  M'Daniel,  1  M'Cord,  480;  Van  I>o:in  i'.  Kline.  10  Johns.  129;  Ltimmis 
r.  Boon.  2  Pennington.  734;  Pond  v.  Griffin.  1  Alabama,  678;  Beck  v.  Brady,  7  Lou- 
isiana  Annual,  1  ;  Harbison  c.  McCartney,  1  Grant,  172.  ^       ,       j 

«  Redus  r.  Woffoni,  4  Sme.les  &  Marshall,  579  ;  Am.  Ex.  Bank  i'.  Moms  Canal  and 
Bankin-  Co.  6  Hill  (N.  Y.),  .362  ;  Martin  v.  Drvden,  6  Illinois  (1  Gilman),  187 ;  Bald- 
win V.  Leftwich.  12  Alabama.  8-38;  Tappan  v.  Harrison,  2  Humphreys,  172;  Oldham 
V.  Scrivener,  3  B.  Monroe,  579. 

[151] 


§  2o0  KFKKCT   AND   OFFKF.   OF    AN    ATTAfllMKN'T.        [(  II  \1'    VIM. 

first  attacliinciit  bound  tlic  property  only  as  against  MiljM-qurnt 
'purchasers  and  morti/iii/vts ;  but  it  was  held,  that  tliuugli  a  judg- 
ment creditor  was  neither  a  purchaser  nor  a  mortgagee,  and  there- 
fore not  within  th».'  letter  of  the  hiw,  yet  lie  wms  within  its  equity  ; 
and  the  priority  of  the  lirst  attachment  was  sustained.' 

§  230.  An  attachment  in  the  hands  of  ono  officer,  levied  on 
pers(jnal  projterty,  will  take  precedence  of  a  senior  execution,  in 
the  hands  of  another  officer,  who  has  not  elfected  a  levy,'-  Thus, 
where  a  constable  seized  cert;iin  property,  under  an  attachment 
for  a  sum  exceeding  fifty  dollars,  issued  by  a  justice  of  the  peace, 
and  the  law  required  that,  in  such  a  case,  he  should  deliver  the 
property  to  the  sherilf,  to  be  sold,  if  rcHpiired  to  satisfy  the  attach- 
ment, which  wa.s  done ;  and  the  sheriff,  instead  of  holding  tho 
property  sul)jt'ct  to  tho  attachint'iit,  h'vicd  on  it  an  execution  that 
was  in  hi.s  hands  before  the  attachnient  was  levied  ;  it  was  held, 
that  this  was  a  wrongful  act,  which  would  enable  the  constable  to 
maintain  replevin  against  the  sherilT  for  the  property.* 

1  Sttiiicklctt  vt  f.l.vrlf'H  Aj-iKMiI.  14  Pcnn.  State,  326. 

'  Fit'M  r.  Milhiirn,  9  Mi».s«>uri.  41)2. 

'  Hoiiriu-  r.  HiM-ktr,  II  B.  MuiiriR-,  2.1.  The  fullowing  arc  the  views  of  the  coart: 
"  Tlir  (|insti(>ti  ill  this  case  (lf|K-ntl.s  iiimjh  tin*  qiii-Jition  wlu-fhi-r  tlie  h-vy  of  tho  nttnch- 
mcnt  was  hiwfiil  whili-  thi-rc  was  an  iiiili'vic<l  execution  in  the  harul!)  of  another  officer. 
For  if  a  f(>iistal)l('  hatl  a  ri);ht  to  low  tlie  proeejts  in  lii.s  hands,  we  do  not  jK-nvive  liowr 
tlie  shtritV  eoiijd  ri;,'htfiilly  invuclc  tin-  |H>SM->siuii  thus  lawfully  a('i|iiiri-d,  or  take  from 
him  the  jir()|K'rty  which  he  had  ri;;htfully  taken  fur  the  i)iir|M»>4's  «)f  the  writ  in  his 
hands,  and  whieh  hy  his  seizure  was  pla<-ed  pri>|>erly  in  the  custody  of  the  law.  It  ia 
to  prevent  such  an  invasion  of  jKissession  lawfully  ac«|iiiritl  under  le^al  process,  to  re- 
move all  ^'rtiiind  for  sucli  a  stru;r;:li'  U-tween  iinlejiendent  officers  of  the  law,  and  to 
avoid  occasion  for  conflict  between  ililferent  authorities  or  tnhunals  eoin|>et<'nt  to  act 
upon  the  same  party  and  the  same  pro|ierty,  that  the  law  hiLs  cstahlished  the  principle 
that  the  first  execution  of  the  j»rtHiss  in  the  hands  of  distinct  ofTieers  and  emanating 
from  distinct  anil  coin|K'tent  authorities,  shall  i,'ive  the  preeedenee.  The  fact  that  in 
the  case  of  executions  in  distinct  hands,  the  priority  of  date  is  held  to  b»e  of  no  foreo 
a};ainst  the  priority  of  actual  execution,  shows  that  the  principle  at)ove  referred  to,  and 
the  objects  to  he  secured  hy  it,  arc  deemed  of  more  consc«juencc  than  the  pn-servation 
or  existence  of  the  lien  existin;:  hy  delivery  of  the  writ,  hut  which  stamlin;;  hy  itself  is 
scarcely  more  than  nominal,  and  fades  into  nothinj;  unless  followed  hy  an  actual'  lej^al 
levy.  An  attachment  is  as  imj)erativc  in  requiring,  and  as  efficacious  in  authorizing,  a 
seizure  of  tlie  defendant's  goo<ls  as  a  fieri  Jiirias.  And  if  tlie  lien,  whatever  it  be,  of 
the  senior  execution  leaves,  while  it  is  nnlevicd.  such  projx-rty  or  right  in  the  defend- 
ant that  a  junior  execution  in  di.>tinct  hands  may  not  only  Ik;  levied  on  it,  but  may  by 
the  first  levy  appropriate  tlie  property  to  itself,  to  the  exclusion  of  the  senior  execution, 
we  do  not  perceive  on  what  ground  the  unlevied  execution,  or  any  lien  attaching  to  it, 
can  irjwl  an  attachment,  which  is  a  process  of  c()ual  authority  with  itsdf  True,  tho 
attat  hnient  gives  no  lien  before  it  is  levied.  But  this  is  substantially  true  with  respect 
to  the  junior  execution,  as  against  the  older  one  in  the  hands  of  the  officer.  And  it  ia 
also  substantially  true  with  respect  to  the  older  one  itself,  as  against  a  junior  execu- 
[152] 


CHAI'.  VIII.]       EFFECT   ANT)   OFHCE   OF   AN   ATTACHilENT.  §  231 

§  231.  Unless  otherwise  directed  by  statute,  attachments  tako 
precedence,  and  are  entitled  to  satisfaction,  in  the  order,  in  point 
of  time,  of  their  service.^ 

tion  in  tlie  hands  of  a  distinct  officer,  acting  under  a  distinct  authority.  For  to  say 
that  as  between  them  the  first  levy  gains  the  precedence,  is  to  say  that  as  between  them 
there  is  no  lien  until  there  is  a  levy.  It  seems  impossible  to  trace  this  want  or  annihi- 
lation of  the  lien  of  each  as  against  the  other  to  the  fact  that  each  would  have  a  lien 
but  for  the  other,  or  that  each  has  a  lien  except  as  against  the  other.  If  the  lien  aris- 
ing from  the  right  to  levy  were  to  l>e  regarded,  the  execution  first  in  hand  must  pre- 
vail. The  true  tjmund  and  j»rinciple  of  the  rule  applicable  to  the  case  seems  to  be, 
that  the  pri)cess  in  the  hands  of  each  officer  being  eijually  authoritative  and  eiinally  im- 
perative in  its  rc<|uisitioii  to  .seize  the  proj^Tty  of  the  defendant,  and  each  officer  being 
independent  of  the  other,  eaih  has  a  rigiit  and  is  l>ouiid  to  execute  the  process  in  hia 
hands  a.s  speedily  and  as  effivtually  as  he  can,  and  that  the  right  and  autliority  of  each 
being  equal,  either  may  rightfully  act  without  yielding  to  the  mere  authority  of  the 
other  to  act;  but  that  when  either  has  acted  under  the  mandate  of  his  process,  and  has 
by  seizure  anjuired  the  [(os.st-.ssion,  and  placed  the  projK^rty  in  the  custody  or  under  the 
authority  of  the  law,  the  other  is  bound  to  resjRct  this  j)Ossession  and  custody.  And 
he  cannot  afterwards  take  the  projKrty.  because  it  is  no  longer  in  the  possession  or 
power  of  the  (b-femlant,  but  has  already  Ikcu  taken  by  competent  authoritv,  and  is  un- 
der the  p<jwer  aiul  protection  of  the  law,  and  because  his  subsequent  seizure  of  it,  while 
in  the  lawful  possession  of  the  first  taker,  would  Ik-  a  trespass  which  he  is  not  author- 
ized to  commit.  A  jiuSM-ssion  derived  from  the  act  of  the  defendant  is  of  course  not 
thus  protected."     See  Field  i*.  Milburn,  9  .Missouri,  492. 

1  Kol>ertAoi»  c.  Forrest,  2  Urevard,  466;  Crowninshield  i'.  Strobel,  Ibid.  80;  Emer- 
•on  r.  Fox.  3  I»ui.si«ua.  1H.J;  Atlas  Hank  v.  Nahant  Bank,  2.3  Pick.  488;  Wallaces. 
Forrcat,  2  Harris  &  M'Henry,  261;  Talbot  f.  Harding,  10  Missouri,  350;  Farmers' 
Bank  v.  Day,  6  Grattan,  360. 

[153] 


§  234  ATTACiniENT   OF   REAL   ESTATE.  [cHAP.  IX. 


CHAPTER    IX. 

ATTACHMENT   OF    REAL    ESTATE. 

§  232.  It  would  be  inconsistent  witli  the  scope  and  design  of 
this  work  to  set  forth  the  law  of  each  State  as  to  the  interests  in 
real  estate  which  arc  subject  to  attachment.  It  may  be  stated, 
however,  that  the  general  principle,  which  confines  the  right  of 
attachment  of  tangible  property  to  such  interests  therein,  or  de- 
scriptions thereof,  as  can  be  sold,  or  otherwise  made  available, 
under  execution,  to  satisfy  the  plaintiff's  demand,  applies  as  well 
to  real  as  personal  property. 

§  233.  Whether  real  estate  can  bo  attached,  when  the  defend- 
ant has  suflicient  personal  property,  accessible  to  the  officer,  out 
of  which  to  make  the  debt,  must,  in  like  manner,  depend  on  the 
law  of  each  State,  and  the  peculiar  phraseology  of  the  writ  under 
which  the  officer  acts.  It  may  be  considered  a  sound  doctrine, 
that,  in  the  absence  of  any  positive  limitation  of  the  right  of  at- 
tachment, real  estate  may  be  as  well  attached  as  personalty ;  and 
tliat  the  existence  within  the  knowledge  of  the  officer  of  a  suf- 
ficiency of  the  latter,  which  he  might  seize,  will  not  invalidate  an 
attachment  of  the  former.  This  was  so  held,  where  a  statute 
existed  directing  attachments  to  be  served  by  attaching  the  goods 
or  chattels  of  the  defendant,  or  if  none  could  be  found,  by  attach- 
ing his  person  or  land.^ 

§  234.  Another  established  principle  affects  with  peculiar  ht>- 
ness  attachments  of  real  estate, —  that  the  attachment  can  operate 
only  upon  the  right  of  the  defendant  existing  when  it  is  made. 
If,  prior  to  the  attachment,  he  had  sold  and  conveyed  the  land,  in 
good  faitli,  but  the  vendee  did  not  put  the  deed  on  record  until 
afterward,  but  did  so  before  a  sale  of  the  land  undor  execution, 
it  cannot  be  held  for  the  debt  of  the  vendor .^  Nor,  on  the  other 
hand,  can  any  interest  which  the  defendant  subsequently  acquires 

1  Isham  V.  Downer,  8  Conn.  282;  Weathers  v.  Mudd,  12  B.  Monroe,  112. 

2  Cox  V.  JMilner,  23  Illinois,  476. 

[154] 


CHAP.  LX.]  ATTACHMENT    OF   REAL   ESTATE.  §  23-1 

be  readied  by  it.  This  principle  was  applied  in  the  following  case. 
Tlie  Commonwealth  of  Massachusetts,  in  1832,  gave  a  bond  for 
title  to  real  estate  to  P.,  and  in  August,  1836,  executed  to  him  a 
deed  in  pursuance  of  the  bond.  Prior  to  the  last-named  date,  P. 
conveyed  l)y  deed  of  warranty  an  interest  in  the  lands,  to  parties 
from  whom,  by  intermediate  conveyances,  that  interest  came  to  be 
vested  in  S.  In  1835,  S.  conveyed  by  warranty  deed  to  C,  but 
the  deed  was  not  recorded  till  1839.  In  May,  1836,  that  interest 
was  attached  as  the  property  of  S,,  and  sold  in  1841,  under  the 
execution  in  the  attachment  suit,  and  bought  by  P.,  the  original 
obligee  in  the  bond  from  Massachusetts.  The  question  of  title 
came  up  in  a  suit  by  C.  against  P.  for  a  proportionate  part  of  the 
value  of  timber  cut  by  the  latter  from  the  land.  On  behalf  of  C. 
it  was  claimed,  that  the  title  made  by  Massachusetts  in  1836,  en- 
ured to  C.'s  benefit,  by  virtue  of  the  various  conveyances,  with 
warranty,  beginning  with  tliat  from  P.  and  ending  with  that  from 
S.  to  C.  On  the  other  hand,  it  was  urged  in  support  of  P.'s  title 
that  the  atttichment  through  which  ho  claimed,  having  been  laid 
on  the  land  before  the  deed  from  S.  to  C.  was  recorded,  and  tliere- 
fore  before  it  could  take  effect  against  the  attachment  plaintiffs, 
by  its  registry,  gave  to  the  attachment  plaintiffs  the  same  title 
which  would  have  enured  to  them,  1^'  the  doctrine  of  estoppel,  if 
they  had  held  under  a  deed  with  covenants  of  warranty  recorded 
at  the  time  of  the  attachment,  and  that  their  right  passed  to  P. 
This  claim  on  bulialf  of  P.  was  repudiated  by  the  court  in  these 
terms :  "  The  purpose  of  an  attachment  upon  mesne  process  is 
simply  to  secure  to  the  creditor  the  property  which  the  debtor  has 
at  the  time  it  is  made,  so  that  it  may  be  seized  and  levied  upon  in 
satisfaction  of  the  debt,  after  judgment  and  execution  may  be 
obtained.  The  title  to  the  property  remains  unchanged  by  the 
attachment. 

"  An  attachment  can  operate  only  upon  the  right  of  the  debtor 
existing  at  the  time  it  is  made.  No  interest  subsequently  acquired 
by  the  debtor  can  in  any  manner  be  affected  by  the  return  thereof, 
when  none  was  in  him  at  the  time. 

"  We  have  been  directed  to  no  case,  and  it  is  believed  that  none 
can  be  found,  where  a  title  has  been  held  to  enure  to  a  creditor 
from  an  attachment  upon  a  writ  by  way  of  estoppel,  as  from  a 
deed,  with  covenants  of  warranty,  where  there  is  no  title  of  the 
debtor  unon  which  the  attachment  can  operate.     Upon  the  prin- 

[155] 


§    235  ATTACHMIINT   OF   REAL   ESTATE.  [CIIAP.  IX. 

ciplo  contended  for,  it  would  bo  in  the  power  of  a  creditor,  by  a 
return  of  an  attachment  upon  mesne  process,  to  secure  to  himself 
any  interest  in  real  estate  which  his  debtor  might  obtain  subse- 
quently thereto,  if  the  interest  should  be  attachable. 

"  At  the  time  the  attachment  was  made,  .S.  had  no  title  what- 
ever in  the  land,  nor  had  he  seizin  or  possession.  If  he  had  nuido 
no  conveyance  till  the  title  had  passed  from  the  Commonwealth 
of  Massachusetts  to  P.,  the  attachment  wotild  l)e  entin^ly  witliout 
effect  against  him,  but  the  title  of  tiie  Commonwealth  would  onuro 
to  his  benefit  alone.  The  levy  of  an  execution  at  the  same  time 
would  be  a  nullity,  and  the  return  of  full  satisfaction  thereon 
would  not  prevent  the  issue  of  a  new  execution  upon  scire  facias. 
When  the  levy  was  made  upon  the  execution  obtained  from  the 
judgment  recovered,  the  title  had  passed  from  the  Commonwealth 
of  Massachusetts  to  P.,  and  the  same  enured  to  S.,  and  instantly 
toC."» 

§  23").  The  (juestion  has  fnNjuontiy  arisen,  whctln'r  a  mortgagee 
of  real  estate  has  an  attachable  interest  therein.  It  has  been  held 
by  courts  in  several  States,  that,  before  an  entry  for  condition 
broken,  with  a  view  to  foreclosure,  such  interest  cannot  be  taken 
in  satisfaction  of  a  judgment  and  execution  against  him.  This 
doctrine  has  been  so  freijuently  discussed  and  reaffirmed,  that  it 
may  be  considered  fully  established.  Whether  his  interest  is  so 
changed  by  such  entry,  that  it  becomes  attachal)le,  is  a  question 
which  does  not  ap])oar  to  have  been  distinctly  presented  for  adju- 
dication, except  in  Maine.  In  several  opinions,  courts  had  care- 
fully limited  the  doctrine  to  the  cases  before  them,  where  there 
had  been  no  entry  for  a  breach  of  the  condition,  or  when  the 
mortgagor  was  in  possession  ;  and  in  others,  they  intimated,  in 
terms  far  from  implying  doubts,  that  the  respective  rights  of  the 
parties  to  a  mortgage  were  not  materially  changed  by  the  entry 
of  the  mortgagee.  Before  the  Sujjreme  Court  of  Maine,  however, 
the  question  was  broadly  presented,  and  after  a  full  and  careful 
examination,  it  was  decided  that  the  interest  of  a  mortgagee  can- 
not be  attached  any  more  after  entry  than  before.^ 

1  Crocker  v.  Pierce,  31  Maine,  177. 

2  Smith  V.  People's  Bank,  24  Maine,  185;  Lincoln  v.  White,  30  Ibid.  291  ;  Thorn- 
ton I'.  Wood,  42  Ibid.  282.  The  views  of  the  court  were  thus  expressed,  in  the  first 
of  these  cases  :  "  The  result  is  to  be  drawn  from  the  principles  which  we  have  consid 

[156] 


CHAP.  L\.]  ATTACHMENT   OF  REAL   ESTATE.  §  23G 

§  23G.  The  requisites  of  an  attuchmciit  of  real  estate  are  gen- 
erally (ieteruiincJ  by  statute.  Where,  however,  tliat  is  not  the 
case,  the  rule  which  has  obtained  in  Maine  and  Massachusetts 
would  [)n)bul»ly  be  received  and  applied,  —  that  it  is  not  necessary 
for  tlie  oflicer  to  go  upon  the  land,  or  into  its  vicinity,  or  to  see  it, 
or  do  any  other  act  than  make  return  upon  the  writ  that  he  had 

ered,  that  the  l»rcac-h  of  the  condition  in  a  mortt:a;.t:  in  no  respect  changes  the  nature 
of  the  catutc  in  the  respective  parties.  Notwithstandin;^  such  breach,  the  mortgagor  is 
still  consitlf  red  the  owner  against  all  but  the  mortgagee ;  he  may  sell  and  convey  the 
fee ;  may  Ica^i-  the  land,  if  in  j»ossossion  ;  and  in  every  respect  deal  with  it  as  his  own. 
The  e<juity  of  re<hinj>tiun  remains  little,  if  at  all,  affected  by  an  entry  of  the  mortgagee, 
after  breach  of  the  condition  ;  the  rights  of  the  mortgagor  are  not  essentially  impaired 
till  foreciosun-.  It  may  be  taken  on  exwution  against  the  owner  and  disjjosed  of  as 
well  after  lu*  before  such  entry;  and  the  interest  accjuired  by  the  creditor  differs  in  no 
rcs|)ect  from  that  which  he  would  have  obtained,  if  made  before  breach  of  condition. 
The  mortgagee,  by  his  entry,  aojuires  no  absolute  interest  presently,  which  lie  would 
not  have  <l<»nc  by  taking  jHJSsession  bifore  the  breach  of  the  comlition.  In  both  cases 
he  woulil  hold  the  land  subject  to  redemption,  and  be  obliged  to  account  strictly  for 
the  mt  value  of  the  rents  and  pndits;  if  they  should  be  equal  to  the  amount  of  the 
debt  secured  by  tin-  njortgage,  l«forc  the  expiration  of  the  time  necessary  to  work  a 
foreclosure,  tlie  mortgage  wouUl  be  discharged  thereby  as  effectually  us  by  any  other 
D)o4le  of  payment.  In  the  view  of  a  court  of  equity,  the  rents  antl  j)ro(its  are  incidents 
df  jitrr  to  the  ownership  of  the  equity  of  redi-mption.  In  no  sense  can  they  be  the 
pro[)crfy  of  the  mortgagee,  till  foreclo-»ure.  He  surrenders  no  rigiits  which  he  before 
poMjH*sM*«l  \i\  the  entry.  In  the  language  of  Chirf  Justice  Shaw,  in  Fay  v.  Cheney,  14 
Pick.  .30U,  •  the  entry  doesi  litth-  or  nothing  to  change  the  relative  rights  of  the  parties. 
It  fixe.t  the  commfneenu-nt  <tf  three  years,  the  lapse  of  which,  by  force  of  law,  if  the 
Mtate  l>e  not  redeemetl,  will  work  a  foreclosure.*  Until  that  takes  place,  the  mortgage 
ii,  iU  bcfon-,  u  Mvurily  for  the  debt,  ami  remains  the  jK-rsonal  j»roperty  of  the  mortga- 
gee, passing  on  hi<«  death  to  the  exenitor  and  not  to  the  heir.  No  new  jirojKTty  is  added 
to  it  by  entry,  which  did  not  |ireviously  bt-long  to  it,  so  as  to  make  it  liable  for  the  debts 
of  the  Mjortgagee.  All  tht-  tlitticulties  ami  inconveniences,  which  would  result  from  a 
levy  of  un  execution  ujion  smh  an  estate,  Ix-fore  entry,  would  exist  in  even  a  greater 
degns-  afti-rwards.  In  addition  to  the  fict,  that  an  execution  might  require  but  a  small 
part  of  the  land  to  satisfy  it,  and  several  levies  might  be  made  by  several  jxrsons, 
which  would  U-  an  einbarrussinent  to  the  mortgagor,  or  his  representative,  if  tiicy 
should  wish  to  redeem,  there  woubl  be  the  greater  dirticulty  arising  from  the  rents  and 
profits,  for  the  value  of  which  tin-  latter  would  be  entitled.  In  such  a  case,  who  would 
be  held  to  account  for  them,  a  part  having  l)een  received  by  the  mortgagee,  and  a  part 
by  8<'veral  crcditf>rs,  who  niij;ht  claim  to  succeed  to  his  right  as  the  mortgagee? 
Against  whom  must  the  mortgagor  bring  his  l)ill  in  equity,  that  he  may  be  rest<jrcd  to 
hi.s  estate  ?  Was  it  sup|K)se<l  that  by  the  acts  of  strangers  he  should  be  turned  from 
the  plain  and  straight  course  of  seeking  his  wiuitics  from  the  mortgagee  and  his  as- 
signs ?  To  whi>m  must  the  tender  Im-  maile  to  entitle  the  owner  of  the  equity  of 
redemption  to  the  rights  secured  to  him  by  law?  But  a  difficulty  greater  than  incon- 
veniences presents  itself  o-s  an  instirmountable  obstacle  to  the  levy  upon  a  mortgagee's 
right  b<rfore  foreclosure.  The  mortga::e  is  a  '  ple<lge,'  '  a  chose  in  action,'  '  an  accident ' 
until  foreclosure.  Such  cannot  be  taken  and  s<jld  on  execution,  unless  by  express 
statute  provision,  much  less  if  p<jssible,  can  it  Ik-  the  subject  of  levy  I)y  a  set-off.  If 
the  interest  of  a  mort:,'ngee  cannot  Ik-  taken  in  satisfaction  of  an  execution,  it  cannot 
be  the  subject  of  attachment  ujKjn  vimne  process.  No  attachment  can  be  made,  where 
there  is  no  right  of  the  debtor  which  is  attachable."     See  Courtiicy  v.  Carr,  6  Iowa, 

[157] 


§  'J:'»7  AirviiiMiM    (It    iMvi    isivir  [ciIAl'.  IX. 

uttarhctl  it.'      lie  has  wo  right  to  take  aiMual  I'xclusivo  possession 
of  tho   jtro|»»Miy,    m-    in    miv    \\:iv    fit   ilivhirli    (h,.    j)OSS0!S^i<>^    iiP   fho 

oeeupiiuts.* 

§  -'^7.  Ill  makinj;  such  return,  a  di^^tinction  is  taken  lH»twe»»ii 
tlu»  h<w  of  an  ntlaehnient,  which  is  a  niero  lien  ttn  the  property, 
ami  the  lew  of  an  oxocution,  hy  whieh,  when  eanied  to  a  sale, 
the  (lel'entlanl's  property  is  devested.  In  tlu»  latter  ease  ^reatt^r 
precision  is  retpiired  than  in  tln»  tornier.  Ilenee  it  has  hetMi  eon- 
sid(M-ed.  ill  the  ease  of  an  atlaehnieiil ,  that  any  words  whieh  elearly 
designate  and  eoniprehend  the  |)roperty  attaeln<d,  are  snlVieient.^ 
In  sneh  eas(»,  too,  th»>  generality  of  the  description  makes  no  ilif- 
foronce,  if  it  he  sJilViciently  intidligihle  to  fix  the  lien  of  the  |)n)C0S8. 
I(f  (urtuni  fitt  ijuotf  (Yrfinn  rvdiii  potiftt,  and,  therefore,  if  the  land 
bo  at  all  intidligihly  indicatecl,  the  application  of  this  principle  will 
remove  ohjei'tions  that  might  «'xist  on  the  score  of  imperfection  in 
the  d(>scription.*  ll  lia>«.  theren)ri»,  Ihmmi  ludd,  that  a  relnin  of  an 
attachment  of  the  tlefendant's  inttMest  in  tln<  farm  h»'  lives  t)n  is 
sulViciiMit.^'  So,  an  attachment  «)f  all  the  defendant's  interest  in 
"a  certain  parcel  of  land  sitnafe  on  Pleasant  StnM't  in  I'oston," 
will  snllice,  if  the  defendant  was  int«M'este»l  in  only  on(>  jtarcel  on 
that  stri'ct."  .\nd  whine  an  olVicer  retnrneil  that  he  had  "attached 
tlio  homt»stead  farm  of  the  defendant,  containing  ahovU  thirty  acres, 
more  or  less";  if  was  ludd,  that  this  was  a  siifliciimt  «leseriptioii 
of  tht>  farm,  alfhongh  in  fact  it  contained  ahoiit  loO  acres;  tho 
statement  of  the  iinmlu>r  of  acres  IxMiig  rejected  as  a  mistak(>  in 
the  olVicer,  or  as  repugnaiif  lo  fhe  more  general  description."  r»nt 
it  has  l)een  hehl  that  an  attachment  of  all  A.'s  right,  title,  and 
interest,  in  and  to  any  real  estate  iu  the  county  of  V.  is  void  for 
uncertainty.'^  And  so,  an  attachment  of  a  defendant's  "  life  estato 
in  all  the  lands  got  hy  his  wife,  supposed  ih  ho  Ai^O  acres.""  Ami 
BO  an    attachment  of  "one  half  of  lot  (50"  without   desigmiting 

1  Crosin-  V.  .\llyii,  .^  Maino,  4.V? ;   ronin  ».  Levon-tt,  l.'i  Muss.  I"JS;  Tiulor  r.  Mix- 
tor.  11  I'iok.  .141  ;   llurklmnit  v.  Mo('lolluii,  i:>  Al.l)Ott  I'nict.  K.  ^43,  uotr. 
'■'  WiHul  r.  Woir,  .'>  \\.  Momoo.  .'>44. 

*  Taylor  r.  Mixtor.  11  rick.  ;»41. 

*  Ciosliy  r.  .\llyii,  [^  Miiiiu",  4.%."<. 

6  lltiwanl  V.  Daiiirls,  '1  Now  llaiup.  \'M ;  Taylor  r.  Mixtor,  11  Tick    .141. 
«  Whitakor  r.  SiimiuT.  !)  Pirk.  .'UIS ;  Lamlmnl  v.  Pike,  X\  Maim-,  141. 
''  Haa>n  r.  Loonarti,  4  Tick.  '211. 

"  llatliaway  r.  Lnrruboo,  'il  Maine,  449.     Sai  contra,  Tratt  r.  Wlioolor,  ti  iJray,  .^20. 
»  lMt/.iui<:l>  f.  Ilellen,  3  lliinis  &  Jol\nsoii,  206. 
[1581 


CHAP.  LX]  ATTACHMENT   OF   REAL   ESTATE.  §  238 

which  }ialf.*     And  so,  an  attacliment  of  "  lot  No.  5  in  block  No. 
12."  2 

In  Missouri  this  case  occurred.  An  attachment  was  levied  upon 
the  undividt.'d  interest  of  the  defendant  in  "  the  south  half  of  the 
Boutiieast  quarter  of  section  17,  T.  o7,  R.  3o,  containing  eighty 
acres."  This  pro[>crty  had,  prior  to  the  attachment,  been  suVjdi- 
vided  by  the  owners  into  blocks  and  lots,  with  streets  dedicated  to 
public  use  separating  the  blocks,  and  some  of  tlie  lots  hud  been 
sold  t^^  third  persons,  and  were  occupied  by  them.  Judgment  and 
execution  were  obtained  in  t)»e  attachment  suit,  and  the  sheriff 
proceeded  to  sell  a  number  of  the  lots  laid  out  in  the  propc^rty 
descril)ed  in  the  levy  of  the  attachment.  The  purchasers  claimed 
that  they  had  acquired  the  defendant's  undivided  interest  in  these 
lots ;  but  it  was  held,  that  the  original  levy  was  void  for  uncer- 
tainty ;  and  that  it  should  have  diseribed  the  property  levied  on 
with  as  much  certainty  as  a  sheriff's  decd.^ 

§  2'i8.  A  point  is  here  presented  which,  under  some  circum- 
stances, might  become  of  great  importance  in  reference  to  the  title 
to  real  estate:  —  Is  it  necessary  to  the  validity  of  an  attachment 
of  real  estate,  and  of  the  title  derived  through  it,  that  the  return 
should  stat*;  the  pn»p<'rty  to  be  the  defendant's?  In  Alabama,  on 
writ  of  error  by  the  def):ndant  to  reverse  a  judgment  l)ecausc  the 
r»?turn  on  the  attachnn;nt  did  not  so  state,  it  was  held,  that  a  posi- 
tive; affnination  by  the  sheriff,  that  the  projjcrty  belonged  to  the 
defendant,  would  have  no  influence  upon  tlic  question  of  title, 
and  could  not  l>e  more  jKjtent  than  a  levy  unaccomjianied  by  such 
a  declaration,  and  that  the  returii  was  sufficient  without  it.*  But 
BUpjMJsing  it  sufficient  to  sustain  the  action,  so  far  as  the  defendant 
is  concerned,  is  it  sufficient  as  a  foundation  of  title,  in  favor  of  one 
claiming  title  through  the  attachment  proceeding?  In  Maine,  one 
claimed  title  through  an  attachment,  which  the  ofhcer  returned 
that  he  hud  levied  on  i)roperty  supposed  to  belong  to  the  defend- 
ant;  and  it  was  held,  that  the  rjualifying  term  "supposed"  did 
not  impair  tiie  effect  of  the  attachment,  when  the  lund  was  in  fact 
the  defendant's.''  On  the  other  hand,  the  Supreme  Court  of  Iowa, 
after  a  full  consideration  of  the  sulyect,  in  an  elaborate  opinion, 

•  PorttT  p.  Byrne,  10  Inilinnn,  146.  ♦  Lncas  r.  Godwin,  6  Alabama,  8.31. 

*  Mculey  V.  ZeiKliT,  2.3  TexaH,  88.  '  Bannister  v.  Higginson,  15  Maine^  731 
■  lienry  v.  Mitchell,  .32  JLssouri,  512. 

[159] 


§  239  ATTACHMENT   OF  REAL   ESTATE.  [cHAP.  LX. 

took  the  opposite  view,  and  held  that  in  order  to  pass  a  title,  it 
should  appear  affirmatively  that  the  property  was  attached  as  the 
property  of  the  defendant.^  This  is  in  accordance  with  the  doc- 
trine which  had  been  previously  established  in  Vir^'inia,  Kentucky, 
and  Missouri,  in  regard  to  attachments  of  personalty .- 

§  239.  The  effect  of  an  attachment  of  real  estate  is,  to  give  the 
plaintifT  a  lien  upon  the  property  from  the  date  of  the  service  of 
the  writ.  By  the  act  of  attaching,  no  estate  passes  to  the  plain- 
tiff,^ or  to  the  attaching  officer  ;*  nor  is  the  interest  or  the  posses- 
sion of  the  defendant  devested,  nor  does  the  officer  or  the  plaintiff 
acquire  any  right  of  possession,  or  right  to  take  the  issues  or  profits. 

1  Tiffany  v.  Glover,  3  G.  Greene,  387.  The  following  are  the  grounds  of  this  de- 
cision. "  Tlu'  ri'turn  of  tlie  officer,  upon  tlic  writ,  must  constitute  the  foundation  of 
all  suhscqucnt  proccedin;;s  n;:ainst  the  property  umler  the  nltjichment.  It  is  only  hy 
the  return  that  the  court  i.s  advised  of  the  levy,  and  sj>ecial  judgment  and  execution  can 
only  be  awarded  upon  a  sufficient  levy,  and  this  must  be  a.scertnined  by  the  officer's 
return.  The  lien  arising  by  virtue  of  the  levy  can  only  attach  when  the  officer  strictly 
complies  with  the  requirements  of  the  statute.  The  proceeding  l>eing  in  derogation 
of  the  common  law,  and  of  a  violent  character,  it  should  affirmatively  apjiear  by  the 
officer's  return,  that  the  provisions  of  the  statute  had  l)cen  strictly  observed,  lus  the 
jurisdiction  of  the  court  over  the  property  dejK'nds  entin-Iy  on  a  legal  levy.  It  is  by 
virtue  of  the  levy,  authorized  by  stJitute,  that  the  court  proceeds  to  render  judgment 
of  condeinnatiun  against  the  propi-rty.  If  the  levy  is  defective,  the  court,  acting  as  a 
conrt  of  limited  jurisdiction  under  a  special  and  stringent  statute,  has  no  power  to  pro- 
ceed against  the  land. 

"  In  proceedings  in  attachment,  the  jurisdiction  of  the  court  is  obtained  by  special 
authority,  derived  from  the  legislature,  and  hence  the  doctrine  of  presumption,  as 
applicable  to  courts  in  the  exercise  of  common  law  jMJwers,  cannot  apply.  In  attach- 
ments, as  we  have  said,  it  is  the  lery  which  confers  jurisdiction,  and  if  this  apj»ear 
defective,  it  caimot  be  obviated  by  legal  intendment,  or  covered  by  the  favor  usually 
extended  to  courts  in  the  exercise  of  their  ordinary  jurisdiction.  This  first  step, 
necessary  to  confer  power  upon  the  court  to  charge  the  land,  must  be  correctly  taken, 
or  all  subsequent  proceedings  under  the  attachment  will  Ijc  conim  non  jiulire  and  void. 

"  The  sheriff,  under  the  statute,  is  only  authorized  to  attach  the  property  of  the 
defendant.  It  should  apjiear  affirmatively,  upon  his  return,  that  in  this  j)articular  ho 
observed  the  statute.  The  sheriff  shotdd  have  returned  that  the  jiroperty  attached 
was  attached  as  the  projjcrty  of  the  defemlant.  In  no  other  way  could  the  court 
legally  know  the  fact,  and  not  until  this  fact  was  before  the  court  could  the  court  pro- 
ceed against  the  land  as  the  land  of  the  defendant.  If  the  ])roj)erty  of  the  difvuddnt 
was  not  attached,  there  was  no  lien,  there  was  no  levy;  and  as  the  fact  that  it  was 
attached  as  the  property  of  the  defendant  was  essential  to  constitute  a  levy,  such  fact 
could  not  be  established  by  extraneous  evidence  dehors  the  return.  The  attachment 
and  sheriff's  return  became  muniments  of  title.  The  source  of  title  under  attachment 
can  onlv  be  ascertained  by  the  return  upon  the  attachment.  To  this  the  court  must 
look  in  awarding  special  judgment  and  execution.  If  from  this  it  cannot  be  ascertained 
whose  property  is  attached,  all  further  proceedings  should  cease." 

-  Clay  V.  Neilson,  5  Randolph,  596 ;  Mason  v.  Anderson,  3  Monroe,  293 ;  Anderson 
V.  Scott,  2  Missouri,  15. 

8  Lyon  V.  Sanford,  5  Conn.  544. 

*  Scott  "c'.  ilanchester  Print  Works,  44  New  Hamp.  507. 
[160] 


CHAP    IX.]  ATTACHMENT   OF  REAL  ESTATE.  §  241 

It  merely  constitutes  a  lien,  which  can  be  made  available  to  the 
plaintiff  only  upon  condition  that  he  recover  a  judgment  in  the 
suit,  and  proceed  according  to  the  existing  law  to  subject  the 
property  to  sale  under  execution.^  And  this  lien  has  been  held 
to  be  as  specific  as  if  acquired  by  the  voluntary  act  of  the  debtor, 
and  to  stand  on  as  high  equitable  ground  as  a  mortgage.^  And 
where  a  debtor's  equity  of  redemption  of  mortgaged  land  was  at- 
taclied,  it  was  decided,  that  the  attachment  created  a  lien  which 
entitled  the  plaintiff  to  redeem,  and  that  a  decree  of  foreclosure 
on  a  bill  brought  after  the  service  of  the  attachment  did  not  affect 
the  rights  of  the  attaching  creditor,  unless  he  were  made  a  party 
to  the  suit.^ 

§  240.  It  has  just  been  stated,  that  the  levy  of  an  attachment 
upon  real  estate  does  not  confer  upon  the  attaching  officer  any 
right  to  take  the  issues  and  profits  thereof.  It  may  be  added  that, 
unlike  the  case  of  a  levy  on  personalty,  he  acquires  no  lien  upon, 
or  special  property  in,  the  land.  He  is  not  required  or  authorized 
to  take  |)ossession  of  it,  nor  in  any  event  is  he  accountable  for  it, 
or  for  its  rents,  issues,  or  profits.  His  agency  and  authority  are 
terminated  whenever  the  duties  are  performed  for  which  the  pro- 
cess was  j»nt  into  his  hands.  Tlie  lion  created  by  the  attachment, 
whatever  may  be  its  character,  is  in  the  attaching  creditor,  and  he 
only  can  release  or  di.>«charge  it.  Where,  therefore,  the  law  re- 
quired, in  order  to  a  valid  attachment  of  real  estate,  that  a  copy» 
of  the  writ,  with  the  officer's  return  thereon,  should  be  deposited 
in  the  office  of  the  town  clerk,  and  that  was  done ;  but  the  officer 
afterwards  withdrew  the  copy  from  the  town  clerk's  office,  and 
erased  his  return  therefrom,  and  substituted  a  return  of  an  attach- 
ment of  personalty ;  it  was  held,  that  such  withdrawal  and  erasure 
did  not  affect  the  plaintiff's  lien  on  the  property.* 

§  241.  Tlie  right  to  attach  real  estate  extends  as  well  to  undi- 
vided interests  as  to  interests  in  severalty.  Therefore,  where  land 
descended  to  several  children,  who  made  partition  of  it  among 
themselves  by  deed,  and  a  creditor  of  one  of  the  children,  not 

»  Taylor  v.  ilixtor,  11  Pick.  341 ;  Scott  r.  Manchester  Print  Worlcfi,  44  New  Hamp. 
507. 
^  Carter  v.  Champion,  8  Conn.  549. 

•  Lyon  f.  Siinford,  5  Conn.  544. 

*  Braley  v.  French,  28  Vermont,  546. 

II  [1611 


§  242  ATTACHMENT   OF   REAL   ESTATE.  [cHAP.  IX. 

having  cither  actual  or  constructive  notice  of  the  partition,  at- 
taclicd  all  his  debtor's  undivided  share  in  the  estate  ;  it  was  held, 
that  the  attachment  created  a  lien  which  was  not  defeated  by  tho 
partition.^  And  where  an  attachment  was  levied  on  the  undivided 
interest  of  a  debtor  in  a  tract  of  land,  and  his  co-tenant  afterwards 
filed  a  petition  for  partition  and  obtained  it,  without  any  notice, 
actual  or  constructive,  to  the  attaching  creditor,  who  perfected  his 
judgment,  obtained  execution,  and  levied  it  on  the  debtor's  undi- 
vided interest,  and  then  instituted  suit  for  a  partition;  it  was  held, 
that  the  first  partition,  pending  the  attachment,  did  not  affect  tho 
rights  of  the  attaching  creditor,  and  partition  was  decreed  in  his 
favor.^  And  in  a  case  where  an  attachment  was  laid  on  a  debtor's 
undivided  interest  in  real  estate,  and,  pending  tho  attachment,  a 
partition  of  the  land  was  had,  and  the  debtor's  purparty  set  ofT  to 
him  in  severalty,  and  the  execution  in  the  attachment  suit  was 
levied  on  the  part  so  set  off;  it  was  decided  that  the  lien  of  tho 
attachment  continued,  notwithstanding  the  partition,  and  that  tho 
execution  was  properly  levied  on  tho  several  property.' 

§  242.  Tho  time  when  an  attachment  of  real  estate  is  actually 
effected  might,  in  many  instances,  be  of  much  importance.  It 
would  seem  to  be  an  undoubted  i)rinciple,  that  such  attachment 
would  have  no  force  until  completed  according  to  the  existing  stat- 
utory requirements.  This  view  is  sustained  by  a  case  in  New 
Hampshire,  which  arose  under  the  statute  of  that  State,  requiring 
a  copy  of  the  original  writ  and  return  to  be  left  with  the  town 
clerk,  in  order  to  constitute  an  attachment.  A.  conveyed  to  B. 
certain  real  estate  on  the  10th  of  May,  and  the  deed  was  recorded 
on  the  13th  of  that  month.     On  the  11th  of  ihe  same  month  the 

1  M'Mechan  v.  Griffinp,  9  Pick.  537. 

2  Munroc  v.  Luke,  19  Tick.  39.  Shaw,  C.  J.,  in  delivering  the  opinion  of  the  court, 
said :  "  The  main  ar^'ument  in  the  present  case  is,  that  the  j)ctitioners  haviii;^:  only  an 
attachment  on  the  estate,  at  tiie  time  of  the  partition,  they  ha<l  no  such  interest  or  estate 
in  the  land  as  to  entitle  them  to  notic^  The  provision  of  the  statute  is,  that  the  court 
shall  not  proceed  to  order  partition,  until  it  shall  appear  that  the  several  persons  inter- 
ested have  heen  duly  notified  of  such  petition  by  ]K;rsonal  service  or  by  jjublication, 
and  have  had  opportunity  to  make  theif  exception  to  the  granting  of  the  same.  This 
language  is  broad  enough  to  include  the  lien  created  by  an  existing  attachment,  which, 
thou"'h  a  contingent  interest,  is  often  a  very  imi)ortant  one,  and  extends  to  the  whole 
value  of  the  estate.  And  though  only  a  lien  when  the  action  is  pending,  yet  when 
judgment  is  rendered  and  execution  levied,  it  relates  back,  to  many  purposes,  to  the 
time  of  the  attachment,  and  especially  so  far  as  to  defeat  any  mesne  couveyauccs  or 
incumbrances." 

8  Crosby  v.  AUyn,  5  Maine,  453 ;  Argyle  v.  Dwinel,  29  Ibid.  29. 

[162] 


CHAl'.  LX.]  ATTACmiENT   OF   REAL   ESTATE  §  242 

premises  were  attached  under  a  writ  issued  against  A.,  and  on  that 
day  the  >^heritT  left  with  the  town  clerk  a  copy  of  the' writ  and  his 
return  thereon.     Some  time  after  the  deed  from  A.  to  B.  was  re- 
corded, the  officer  who  served  the  attachment  obtained  access  to 
the  files  of  the  town  clerk,  and,  without  the  knowledge  of  either 
party,  altered  the  copy  of  his  return  left  there,  and  having  made 
a  sim'ihir  alteration  in  his  return  upon  the  original  writ,  caused 
the  writ  to  he  returned.     It  was  upon  this  amended  return  that 
the  real  estate  was  afterwards  subjected  to  execution,  and  the  pur- 
chaser under  the  execution  was  brought  in  conflict  with  the  grantee 
in  the  deed.     The  court  was  of  opinion  that  no  valid  attachment 
was  made  until  the  amended  copy  of  the  return  was  left  with  the 
town  clerk,  and  as  that  took  place  some  time  after  the  deed  was 
recorded,  the  grantee  in  the  deed  was  entitled  to  hold  the  land.^ 

1  Cogswell  V.  Mason,  9  New  Hamp.  48. 

[1G3| 


§  244  a  ATTACmiENT   OF   I'EESONAL   PROPERTY.  [ciIAP.  X. 


CHAPTER    X 

ATTACHMENT  OF  PERSONAL  PROPERTY. 

§243.  Under  this  head  will  bo  considered,  —  I.  What  interests 
in,  and  descriptions  of,  personal  property  may  bo  attached  ;  and 
II.  The  requisites  of  a  valid  attachment  of  personalty. 

§  244.  I.  Wiat  Interests  in,  and  Descriptions  of^  Personal  Prop- 
erty may  be  attached.  The  first  general  proposition  on  this  point 
is,  that  proj)erty  which  cannot  bo  sold  under  execution  cannot  bo 
attached.*  Of  course  the  correlative  follows,  that  whatever  may 
bo  sold  under  execution  may  i>o  uttaohtMl.'-  Mont'V  may  bo  at- 
tiiched  in  specie^^  and  may  be  taken  from  the  defendant's  posses 
sion,  if  the  olTicor  can  take  it  without  violating  the  defendant's 
personal  security.*  Bank  notes  also  m*ay  bo  attached,^  and  so,  it 
is  said,  may  treasury  notes  of  the  United  States.^  t^tock  in  a  cor- 
poration cannot  bo  attached  unless  authorized  by  express  statute.^ 

§  244  a.  Property  wliich  is  exempt  from  execution,  of  course 
cannot  bo  attached,  unless  tho  defendant  consent,  or  bo  proceeded 
against  as  a  non-resident."  This  rule  is  not,  however,  to  bo  ox- 
tended  beyond  its  terms,  as  expressed.  If  the  party  who  might 
avail  himself  of  tho  exemption  sell  tho  exempted  j)roi)crty,  a  debt 
due  him  therefor  may  bo  attached.® 

An  officer  levying  an  attachment  upon  property  exempt  from 
execution  is  liable  to  the  defendant  as  a  trespasser,  if  he  know 
that  it  is  exempt.^o    But  in  order  to  enforce  this  liability,  tho  de- 

1  ricrcc  V.  Jackson,  6  Mass.  242  ;  Parks  i-.  Cushman,  9  Vermont,  320  ;  Halsey  v. 
Wliitney,  4  Mason,  206 ;  Davis  v.  Garret,  3  Iredell,  459  ;  Nashville  Bank  v.  Kagsdale, 
Peck,  29fi. 

2  Handy  v.  Dobbin,  12  Johns.  220;  Spencer  v.  Blaisdell,  4  New  Hamp.  198;  Goll 
17.  Hinton,  7  Abbott  Tract.  \\.  120. 

8  Turner  i;.  Fcndall,  1  Cranch,  117 ;  Sheldon  v.  Root,  16  Pick.  567;  Handy  v.  Dob- 
bin,  12  Johns.  220. 

*  Prentiss  v.  Bliss,  4  Vermont,  51.3. 

^  Spencer  >;.  Blaisdell,  4  New  Hamp.  198. 

*  State  V.  Lawson,  7  Arkansas  (2  Enjrlish),  391. 

^  Haley  v.  Reid,  16  Gcor;,n:i,  437  ;  Nashville  Bank  v.  Ragsdale,  Peck,  296. 

8  Yelverton  v.  Burton,  26  Penn.  State,  351. 

9  Scott  V.  Brigham,  27  Vermont,  561 ;  Knabb  v.  Drake,  23  Penn.  State,  489. 
W  Ante,  §  195. 

[164] 


CHAP.  X.]      ATTACmiENT  OF  PERSONAL  PROPERTY.       §  244  C 

fendant,  if  aware  of  the  levy,  must,  at  the  time,  claim  the  exemi> 
tion,  or  it  will  be  considered  that  he  consents  to  it.  Manifestly, 
he  cannot  set  up  such  a  claim  after  judgment  rendered  against 
him  in  the  attachment  suit.^  If  the  property  is  a  part  of  a  larger 
quantity  than  the  law  exempts,  the  defendant  must,  at  the  time, 
set  apart  such  portion  as  he  is  entitled  to  under  the  exemption, 
or  lie  will  he  held  to  have  waived  his  right.^  And  where,  by  law, 
the  ofTicer  is  required  to  make  an  inventory,  and  to  have  an  ap- 
praisement made,  no  action  will  lie  against  him  for  seizing  property 
which  is  less  in  value  than  the  amount  exempted,  until  he  has  had 
time  to  make  tlic  inventory  and  appraisement.^ 

§  244  h.  Property,  tlie  sale  of  which  is  penal,  cannot  be  attached. 
Wliure,  therefore,  the  sale  of  spirituous  liquor  was  forbidden  by 
law,  it  was  held,  that  it  could  not  l)e  attached,  because  its  subse- 
quent .sale  under  execution  would  be  illegal.* 

§  214  c.  One  of  tlie  indications  of  the  tendency  to  extend  the 
operation  of  the  remedy  by  attachment  is  the  recent  adoption  in 
several  States  of  provisions  authorizing  the  seizure  of  evidences 
of  debt,  and  tlicir  sale  under  execution.  In  New  York,  for  in- 
stance, the  words  "  personal  property,"  as  used  in  the  Code  of 
Procedure,  are  declared  to  include  "  money,  goods,  chattels,  things 
in  action,  and  evidences  of  debt,"  Under  this  Code,  an  attach- 
ment was  obtained  against  a  railroad  company,  and  was  attempted 
to  be  levied  on  certain  bonds  made  by  the  company,  which  had 
never  been  negotiated,  but  were  deposited  with  a  creditor  of  the 
company,  as  collateral  security  for  moneys  advanced.  It  was  held, 
t.iai  they  were  not  things  in  action  or  evidences  of  debt,  subject 
to  levy,  as  no  purchaser  of  them  could  acquire  any  right  to  enforce 
them  against  the  comjjany.^ 

In  Wisconsin,  under  a  statute  of  similar  character,  authorizing 
the  attachment  of  "  notes,  accounts,  and  other  evidences  of  debt," 
and  tli.'ir  collection  by  the  .sheriff,  it  was  held,  that  those  evidences 
of  deltt  which  may  be  attached  by  seizure,  are  only  those  which 

1  Suite  r.  Manly,  15  Indiana,  8. 

'  Xa-sh  r.  Farrington,  4  Allen,  157;  Clapp  v.  Thomas,  5  Ibid.  158. 

•  Bonni'l  r.  Dunn,  5  Diitchcr,  435. 

♦  Nichols  V.  Valentine,  36  Maine,  322. 

»  Coddin-t..ii  r.  r.ill,frt.  5  Dikt,  72;  ».  c.  2  Abbott  Pract.  R.  242;  17  New  York, 
489. 

[1651 


§  245  ATTACHMKXT   OF    ITHSOKAL   PROPERTY.  [cHAP.  X. 

are  completo  and  pt^rfect  evulonces  in  thonisclvos  ;  and  it  was  d^ 
termined  that  account  hooks  were  no  such  evidence  ;  that  their 
Bcizuro  did  not  vest  tlie  sheriff  with  any  right  to  collect  any 
account  contained  in  tliem  ;  and  that  the  only  way  to  reach  an 
inilolttedness  of  such  character  was  hy  garnishment  of  the  dehtor; 
and  that  a  garnishment  after  the  sheriff's  seizure  would  hold  the 
dcht.i 

§  24').  A  fundamental  principle  is,  that  an  attaching  creditor 
can  acquire  no  greater  right  in  attached  property,  than  the  defend- 
ant had  at  the  time  of  tlie  attachni»Mit.  If,  therefore,  the  j>roj)erty 
be  in  such  a  situation  that  the  defendant  has  lost  his  power  over 
it,  or  has  not  yet  acquired  such  interest  in  or  power  over  it  as  to 
permit  him  to  dispose  of  it  adversely  to  otiiers,  it  cannot  he  at- 
tached for  his  deht.^  Thus,  a  chattel  pawned  or  mortgaged  is  not 
attachalile,  in  an  action  against  the  pawner  or  mortgagor;^  and 
the  pawnee  may  maintain  trespass  against  an  officer  attaching  it, 
and  recov«»r  the;  whole  value  in  damages,  though  it  was  plcflged 
for  less ;  for  lie  is  answerable  for  the  excess  to  the  i)erson  who  has 
tho  general  proj)erty.*  So,  goods  ui)on  which  freight  is  due  cannot 
be  attached,  without  paying  the  freight;*  and  if  an  officer  pay  tho 
freight,  in  order  to  get  tlie  goods  into  his  possession,  he  stands,  in 
respect  to  the  lien  for  the  freight,  in  t\u)  place,  and  has  the  rights, 
of  the  carrier.^  So,  goods  manufactured  hy  one  for  another  can- 
not bo  attached  in  an  action  against  the  general  owner  ;  for  the 
manufacturer  has  a  lien  on  them  for  his  work  and  lalmr."  Proj>- 
erty  in  tlie  hands  of  a  bailee  for  hire  cannot  bo  attached  in  a  suit 
against  the  bailor,  during  the  term  of  the  bailment  ;^  nor  can  per- 
sonalty leased  for  a  term  of  years  1)0  seized  under  an  attachment 
against  the  lessor,  even  though  the  sale  of  it  by  tho  sheriff  be  with 

1  Browcr  v.  Smith,  17  Wisconsin,  410. 

^  IJabcock  »•.  Malhii',  7  Martin,  n.  8.  139  ;  IIcpp  v.  Glover,  15  Louisiana,  461  ;  Powell 
V.  Aiken,  18  Iltid.  .321  ;  Doloach  r.  Jones,  IhiJ.  447  ;  Uric  v.  Stevens,  2  Robinson  (La.), 
251  ;  Oliver  v.  Lake,  .3  Louisiana  Annual,  78. 

3  Badlam  r.  Tmkcr,  1  Pick.  .389 ;  Ilolbrook  r.  Baker,  5  Maine,  309 ;  Thompson  v. 
Stevens,  10  Ibid.  27;  Sargent  r.  Carr,  12  Ibid.  .396;  Picquet  v.  Swan,  4  Mason,  443; 
Lylc  F.  Barker,  5  Binney,  457  ;  Haven  v.  Low,  2  New  Hamp.  13 ;  Anderson  i-.  Doak, 
10  Iredell,  293  ;  Williams  c.  Whoples,  1  Head,  401. 

*  Lyle  V.  Barker,  5  Binney,  457. 

«•  DeWolf  r.  Dearborn,  4  Pick.  466. 
^  Thompson  v.  Rose,  16  Conn.  71. 
"  Townsend  i:  NeweU,  14  Pick.  332. 

*  Uartford  v.  Jackson,  11  New  Hamp.  145 

[166] 


CHAP.  X.]  ATTACHMENT   OF   PERSONAL  PROPERTY.  §  245 

a  reservation  of  the  lessee's  right  to  retain  possession  during  the 
continuance  of  the  term.* 

Where  property  has  been  consigned  to  a  factor,  entitled  to  a 
privilege  thereon,  so  that  the  consignor  or  owner  cannot  take  it 
out  of  his  hands  without  paying  his  claim,  a  creditor  of  the  owner 
cannot  attach  it.  In  such  a  case,  where  the  consignee  has  made 
acceptances  on  account  of  the  property,  a  creditor  of  the  consignor, 
wishing  to  take  the  property  out  of  the  hands  of  the  consignee 
without  paying  the  amount  of  his  acceptances,  must  show  that  the 
acceptances  were  not  made  in  good  faith,  and  that  the  consignee 
is  not  hound  to  pay  them.^  And  in  such  case  the  factor  may  bring 
replevin  for  tiie  property;  and  his  right  to  maintain  the  action  will 
not  be  defeated  by  his  consenting  to  become  keeper  of  the  goods 
for  the  attaching  olTicer.^  So,  it  was  held  in  South  Carolina,  that 
a  foreign  ship  and  cargo  consigned  to  one  in  that  State  could  not 
be  attached  in  a  suit  against  the  owner;  the  court  holding  that 
the  consignee  has,  in  contemplation  of  law,  a  qualified  property  in 
the  shij)  and  cargo,  and  a  constructive  possession,  the  moment  she 
comes  into  port;  and  that  from  that  moment  the  consignee  has 
the  direction  and  management  of  her,  for  the  benefit  of  all  con- 
cerned ;  and  that  she  is  under  his  power  and  government,  and 
subject  to  his  orders,  and  he  may  therefore  be  considered  in  law 
as  in  i)ossession  of  th<;  whole  property.  The  court  intimated  that 
the  proper  way  to  attach  the  j)roperty  was  by  garnishment  of  the 
consignee.* 

A  case  of  not  unfrequent  occurrence  is  that  of  goods  being  at- 
tached, where  the  vendor  of  them  to  the  defendant  is  entitled  to 
exercise  tiie  rigiit  of  stoppage  in  transitu,  and  exercises  that  right 
while  the  attachment  is  pending.  In  such  case  the  principle  an- 
nounced at  the  opening  of  this  section  undoubtedly  applies,  and 
the  vendor  is  not  precluded  by  the  attachment  from  exercising 
liis  right  of  stojjpage,  even  though  the  goods  may,  by  order  of  the 
court,  have  been  sold  ;  he  is  entitled  to  the  proceeds  in  the  hands 
of  the  court. ^ 

1  Smith  r.  Nilcs,  20  Vermont,  315.  But  the  interest  of  a  lessee  of  personalty  may 
be  sei/.e»l  and  sold.     Wlicler  r.  Train,  3  Pick.  255. 

-  LuiiilKth  c.  Tnrnl)ull,  5  HoMn^on  (La.),  264;  Skillman  v.  Bethany,  2  Martin,  N.  B 
104  ;  Brownell  »•.  Carnley,  3  Diur,  9;  MNcill  v.  Glass,  1  Martin,  N.  8.  261. 

8  Sewall  V.  Nieholls,  .34  Maine,  582 ;  Brownell  v.  Carnley,  3  Duer,  9. 

*  Sehepler  r.  Garrisean,  2  Bay,  224 ;  Mitchell  v.  Byrne,  6  Richardson,  171 

»  O'Brien  r.  Norris,  16  Maryland,  122. 

[167] 


§  2-16  ATTACUMEXT   OF   PERSONAL   TROPEBTY.  [CIIAP.  X 

§  245  a.  The  point  of  time  at  which  one  sg  far  loses  his  power 
over  personalty  which  he  has  agreed  to  sell  to  another,  as  that  it 
is  not  suhject  to  attachment  for  his  debt,  is  a  matter  of  importanco, 
and  sometimes  of  difficnlty.  The  general  princii)lo  may  he  stated 
to  be,  that  that  act  which  changes  the  control  and  dominion  of 
property,  after  an  agreement  for  a  sale, — that  which  supersedes  the 
power  and  control  of  the  vendor,  and  transfers  it  to  the  vendee,  is 
a  good  delivery  to  pass  the  property  to  the  latter,  and  to  defeat  its 
attachment  for  a  debt  of  the  former.  Thus,  where  A.,  in  fulfil- 
ment of  an  agreement  for  a  sale  to  B.,  shipped  goods  at  All)any, 
by  railroad,  to  l»e  forwarded  to  Boston,  taking  a  receipt  or  way-l)ill, 
making  them  deliveralde  to  himself,  and  enclosed  to  B.  a  written 
order  making  them  deliverable  to  B.,  who,  on  receipt  thereof, 
notified  tlie  agent  of  tlie  raih'oad,  and  at  tiie  same  time  paid  the 
freigiit ;  it  was  held,  that  there  was  a  sufilcient  delivery  to  pass 
the  property  from  A.  to  B.,  tliough  the  latter  had  not  reduced  it 
to  actual  possession,  and  that  it  could  not  be  attached  for  the  debt 
of  A.,  either  while  in  transitu  or  after  its  arrival  at  Boston.^ 

§  246.  The  foregoing  are  instances  in  which  the  owner  has  so 
far  lost  his  j)ower  over  the  property  as  that  it  cannot  be  attached 
for  his  debt.  The  same  result  follows  in  relation  to  property,  in 
or  over  which  a  person  has  not  yet  acquired  such  interest  or  power 
as  is  considered  in  law  to  constitute  an  attachable  interest.  Thus, 
where  merchants  residing  in  the  city  of  New  York  received  au 
order  for  goods  from  persons  residing  at  a  distance,  without  par- 
ticular directions  as  to  the  manner  in  which  the  goods  should  be 
forwarded ;  and  the  vendors  proceeded  to  select  the  goods  ordered, 
and  a  porliiju  of  them,  after  being  packed  in  l>oxes,  were  placed 
on  board  a  vessel  for  transportation,  the  cartman  taking  from  the 
master  of  the  vessel  receipts  for  each  load  ;  it  was  held,  that  no 
person  but  the  shipper  was  entitled  to  a  bill  of  lading ;  and  the 
shipper,  being  also  the  holder  of  the  receipts,  might  direct  to 
whom  the  bill  of  lading  should  be  made  out,  and  until  he  should 
do  so  the  right  of  possession  remained  in  himself;  and,  therefore, 
that  there  was  no  such  delivery  to  the  purchasers  as  rendered  the 
goods  liable  to  seizure  under  au  attachment  against  them.^  Ho, 
of  goods  sold  to  one  for  resale,  to  be  accounted  for,  at  a  future 

1  Hutch  V.  Bayley,  12  Gushing,  27  ;   Hatch  r.  Lincoln,  Ibid.  31. 
^  Joues  I'.  Bradner,  10  Barbour,  193;  ScholficIJ  v.  Bell,  14  Mass.  40. 
[168] 


CHAP.  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.         §  246 

day,  to  the  vendor,  and  if  sold,  to  be  paid  for  ;  if  not,  to  be  re- 
turned.    While  this  arrangement  is  pending,  the  vendee  has  no 
attachable  interest  in  them.^     So,  where,  by  a  parol  contract  be- 
tween the  parties,  A.  was  to  cultivate  B.'s  farm,  find  part  of  the 
seed,  harvest  the  crop,  and  then  take  one  half  of  it  as  a  compen- 
Bation  for  his  labor,  and  deposit  the  other  half  in  such  place  as  B. 
should  direct ;  and  before  the  crop  was  harvested  A.  absconded, 
being  insolvent ;  it  was  held,  that  he  had  no  such  interest  in  the 
crop  as  would  render  it  liable  to  attachment  for  his  debts.^     So, 
where  A.  leased  a  farm  to  B.,  who  was  to  have  one  half  of  the  in- 
crease and  produce,  but  the  stock  and  produce  were  to  be  at  A.'s 
control  until  sold;  it  was  held,  that  B.  had  not  such  an  interest  in 
the  produce  as  could  be  attached.^     So,  where  by  the  terms  of  the 
lease  of  a  f\irm  it  was  stipulated  that  "  all  the  hay  and  straw  shall 
be  used  on  said  farm,"  it  was  decided  that  the  lessee  had  no  at- 
tachalde    interest   in  such   hay  and   straw.-*     So,  where,  by  an 
agreement  between  a  father  and  his  son,  tlie  father  was  to  carry 
on  business  in  the  name  and  on  account  of  the  son,  and  as  his 
agent,  and  the  son  was  to  give  the  father  one  half  of  the  profits, 
as  a  compensation  for  his  services ;  and  some  property  purchased 
by  the  father  in  the  name  of  the  son  was  attached  in  a  suit  against 
the  fatlier ;  it  was  held,  that  the  father  had  no  attachable  interest 
in  the  property.'^     So,  where  property  is  sold  and  delivered,  upon 
condition  that  the  title  shall  not  vest  in  the  vendee,  unless  the 
price  agreed  upon  be  paid  within  a  specified  time,  the  vendee  has 
no  attachable  interest  in  the  property  until  performance  of  the  con- 
dition.«     So,  if  one  acquires  by  purchase  the  possession  of  personal 
property  by  fraudulent  means,  he  has  not  such  title  thereto  as  will 
enable  his  creditors  to  attach  and  hold  it  as  against  the  person 
from  wiiom  it  was  fraudulently  obtained.^     So,  property  consigned 

1  Mcl.lnim  r.  Snow,  9  Tick.  441. 

■^  Chandler  i-.  Thurston,  10  Pick.  205.  -o  .     u    .  „ 

«  FMlon  r.  C.lhurn.  28  Vermont,  631  ;  Lewis  r.  Lpnan,  22  Pick.  437.  But  where  a 
lca..e  provide.!,  th.it  all  the  produce  deposited  on  land  so  leased  .should  be  at  the  lessor  s 
disposal,  and  that  he  tniKht  enter  to  t.ikc  it  for  the  payment  of  any  rent  that  m.j,^h  bo 
in  arrear,  it  w.us  decided  that,  as  a;;ainst  creditors  of  the  lessee,  such  a  provjMon  ^  as 
Neither  a.  absolute  sale  nor  a  mort.n.ge,  and  that  the  produce  could  be  attached  for  tho 
lessee's  debt.     Buttertield  v.  Baker,  5  Pick.  522. 

♦  Coe  v.  Wilson,  46  Maine.  314. 

6  Blan.hardi-.  Coolid-e,  22Pick.  151.  r  .o  .  AT,.v„r 

«  Buckmaster  v.  Smith,  22  Vermont,  203;  Woodbury  r.  Long,  8  B.ck.  543,  Mc.  ar 
Innd  r   Farmer.  42  New  Ilamp.  386.  ^ 

T  Buffington  ..  Gerrish.  15  Ws.  156;  D'Wolf  r.  Babbett,  4  >!---  ^89;  GasTae. 


§  247         ATTACHMENT  OF  TERSONAL  PROPERTY.      [cHAP.  X. 

to  a  fjictor  cannot  be  attached  for  his  debt,  though  he  have  a  lien 
on  it ;  for  his  lien  does  not  dispossess  the  owner,  until  the  right  is 
exercised  by  the  factor,  whose  privilege  is  a  j)ersonal  one,  and  can- 
not be  set  up  against  the  owner  by  any  one  but  the  factor  himself.* 
So,  property  lent  to  one  cannot  be  attached  for  his  debt.^  So,  a 
vested  reniuinder  in  personal  property  cannot  be  attached  during 
the  continuance  of  the  life  estate,  and  while  the  property  is  in  the 
possession  of  the  tenant  for  life.^ 

Similar  to  the  foregoing  instances  is  the  case  of  the  money  of 
a  pensioner  of  the  United  States,  paid  by  the  disbursing  officer 
of  the  government  to  the  pensioner's  attorney,  and  attempted  to 
be  subjected  to  attachment  in  his  hands.  Such  a  case  arose  in 
Vermont,  and  the  court  there  held,  that  the  money  was  protected 
by  the  act  of  Congress,  as  long  as  it  retiiincd  the  distinctive  charac- 
ter of  a  pension  ;  which  it  retained,  at  least  until  jiaid  to  the 
pensioner,  and  was  not  therefore  liable  to  attachment  in  th«;  hands 
of  his  agent,  before  it  was  paid  to  him.'*  So,  coin  paid  to  an  at- 
torney at  law,  in  satisfaction  of  a  del>t  held  by  him  for  collection, 
cannot  bo  levied  on  as  the  property  of  the  party  for  whom  it  was 
collected  ;  for,  until  it  is  paid  over  to  that  party,  he  acquires  no 
specific  interest  in  tJie  particular  pieces  of  coin,  but  only  a  right  to 
receive  from  the  attorney  the  amount  of  money  collected.^ 

§  247.  An  interesting  question  connected  with  this  topic  is, 
•whether  a  husband  has  an  attachable  interest  in  his  wife's  chores 
in  action,  before  he  has  reduced  them  to  possession.  Upon  this 
subject  courts  of  high  authority  have  taken  entirely  opposite 
grounds,  and  the  question  cannot  be  considered  as  yet  settled 
either  way,  by  weight  of  authority.  In  the  affirmative  it  is 
held,  that  the  wife's  choscs  in  action  are,  in  virtue  of  the  marriage, 
vested  absolutely  in  the  husband ;  that  he  has  in  law  the  sole 
right,  during  the  coverture,  to  reduce  them  to  possession,  to  sue 
for  them,  to  sell  them,  to  release  them ;  and  that  he  has,  therefore, 

V.  Johnson,  2  Louisiana,  514;  Thompson  v.  Rose,  16  Conn.  71  ;  Hussev  v.  Thornton, 
4  Mass.  403 ;  Bradley  v.  Obear,  10  New  Hamp.  477  ;  Pannele  v.  M'Lan;j:hlin,  9  Lou- 
isiana, 436  ;  Galbraitii  i'.  Davis,  4  Louisiana  Annual,  95 ;  Wi^gin  v.  Day,  9  Gray,  97. 

1  Holly  V.  Hu^'geford,  8  Pick.  7.3.  On  the  point  of  the  lien  of  the  factor  being  a 
personal  one,  see,  also,  Kittrcdge  r.  Sumner,  1 1  Tick.  50. 

•■2  Morgan  v.  Ide,  8  Cushing,  420 ;  Chase  i'.  Elkins,  2  Vermont.  290. 

'  Goode  V.  Longmire,  35  Alabama,  668 ;  Carson  v.  Carson,  6  Allen,  397. 

*  Adams  v.  Newell,  8  Vermont,  190 ;  Bank  of  Tennessee  v.  Dibrell,  3  Sneed,  379. 

6  Maxwell  v.  McGee,  12  Cushing,  137. 
[170] 


CHAP.  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.         §  248 

an  interest  in  them  which  he  may  assign  to  another,  and  therefore 
an  interest  which  may  be  reached  by  attachment,  and  subjected 
to  the  payment  of  his  debts.  Such  are  the  views  expressed  in 
Massachusetts,  Maryland,  Delaware,  Virginia,  and  Missouri.^  It 
is,  however,  admitted,  that  if  the  husband  die  pending  an  attach- 
ment of  his  interest,  and  before  the  same  is  finally  subjected  to 
his  debt,  the  attachment  will  fail,  because  of  the  wife's  right  of 
survivorship.^  On  the  other  hand,  it  is  considered,  —  in  the  lan- 
guage of  the  Supreme  Court  of  Pennsylvania, —  "that  though 
marriage  is  in  effect  a  gift  of  the  wife's  personal  estate  in  posses- 
sion, it  is  but  a  conditional  gift  of  her  chattels  in  action  ;  such  as 
debts,  contingent  interests,  or  money  owing  her  on  account  of 
intestacy.  Perhaps  the  husband  has  in  strictness  but  a  right  to 
make  them  his  own  by  virtue  of  the  wife's  power  over  them, 
lodged  by  the  marriage  in  his  per'-on.  But  if  these  be  not  taken 
into  his  possession,  or  otherwise  disposed  of  by  him,  they,  remain 
to  the  wife ;  and  if  he  destines  them  so  to  remain,  who  shall 
object  ?  Not  his  creditors  ;  for  they  have  no  right  to  call  on  him 
to  obtain  tlic  ownership  of  the  wife's  property  for  their  benefit ; 
and,  until  he  does  obtain  it,  there  is  nothing  in  him  but  a  naked 
power,  which  is  not  the  subject  of  attachment."^  These  are 
substantially  the  views  also  of  the  courts  of  New  Ilampshire, 
Vermont,  North  Carolina,  and  South  Carolina.^  Wlien  such  a 
difference  of  opinion  exists  between  courts  of  such  acknowledged 
ability  as  those  which  have  passed  on  this  question,  the  subject 
must  needs  be  remitted  to  the  future,  for  a  nearer  approximation 
to  agreement. 

§  248.  The  defendant's  interest  in  personal  property  need  not, 
in  order  to  its  being  subject  to  attachment,  be  several  and  exclu- 
sive.    An  interest  held  by  him  in  common  with  others  may  be 

1  Shuttlesworth  v.  Noyes,  8  Mass.  229;  Commonwealth  v.  Manley,  12  Pick.  17.3; 
Uolbrook  V.  Waters,  19  Ibid.  354;  Wheeler  i-.  Bowen,  20  Ibid.  5G3 ;  Stronjr  v.  Smith, 
1  Metcalf,  476  ;  State  v.  Krebs,  6  Harris  &  Johnson,  .31  ;  Peacock  v.  Pembroke,  4  Mary- 
land, 280;  John>on  v.  Fleetwood,  1  Harrin;:ton,  442;  Babb  v.  Elliott,  4  Ibid.  466; 
Vance  i'.  McLaii;;hlin,  8  (inittan,  289  ;  llotkaday  v.  Sallce,  26  Missouri,  219. 

■■^  Strong  V.  Smith,  1  Metcalf,  476  ;  Vance  v.  McLaughlin,  8  Grattan,  289 ;  Hockaday 
V.  Sallee,  26  Missouri,  219. 

3  Dcnnison  i-.  Nigh,  2  Watts,  90 ;  Robinson  v.  Woclpper,  1  Wharton,  179. 

*  Marston  v.  Carter,  12  New  Ilamp.  159  ;  Wheeler  v.  Moore,  13  Ibid.  478 ;  Pickering 
V.  Wendell,  20  Ibid.  222  ;  Parks  v.  Cushman,  9  Vermont,  .320 ;  Short  v.  Moore,  10  Ibid. 
446  ;  Probate  Court  v.  Niles,  32  Ibid.  775  ;  Arrington  v.  Screws,  9  Iredell,  42  ;  Pressley 
V.  McDonald.  1  Ricliardson,  27;  Godbold  v.  Bass,  12  Ibid.  202. 

[171] 


§  249         ATTACHMENT  OF  PERSONAL  PROPERTY.       [CHAP.  X. 

attached  ; '  and  the  property  may  be  seized  and  removed,  though 
tlio  rights  of  tlie  other  joint  owners  may  thereby  be  impaired.^ 
In  such  case,  only  the  undivided  interest  of  tlie  defendant  can  bo 
sokl,  and  the  purchaser  becomes  a  tenant  in  common  with  the 
other  cotenant.^  If  tlie  officer  sell  the  whole,  it  is,  as  to  the 
cotenant,  a  converiiion,  for  which  he  will  be  liable  to  the  cotenant 
in  trover.*  In  cases  of  attachment  of  property  jointly  owned,  if 
the  attachment  be  dissolved,  the  officer's  liability  to  the  defendant 
for  the  j)roperty  will  be  discharged  by  its  delivery  to  the  cotenant.* 
The  doctrine  stated  in  this  section  applies  to  cases  other  than 
partnerships ;  concerning  which  latter  there  is  much  diversity 
of  decision. 

§  249.  Where  property  is  of  such  nature  that  an  attachment 
of  it  would  produce  a  sacrifice  and  great  injury  to  the  defendant, 
without  bcnenting  the  plaintiff,  it  is  not  attachal)le.  Such  is  the 
rub;  in  ivlation  to  the  defendant's  private  papers,''  or  his  books, 
in  which  his  accounts  are  kept."  Much  less  would  an  attachment 
be  considered  to  create  a  lien  on  the  accounts  contained  in  the 
books.*'     This  rule  applies  also,  in  relation  to  property  which  is  in 

1  Bud(lin;:ton  r.  Stewart,  14  Conn.  404  ;  ^^arion  >:  Faxon,  20  Ibid.  486;  "W'alkcr  w 
Fitts,  24  I'iik.  191  ;  Gull  r.  Hinton,  7  Al)l>ott  Prnct.  U.  120,  overruling  Stoutenburjjh 
V.  Van(lrnhnr;;li,  7  Howard  I'raet.  R.  229,  anil  Sears  c.  (Jearn,  Ibid.  383.     . 

2  Rcmmin<:ton  r.  Cadv,  10  Conn.  44;  Heed  r.  Howard,  2  Metcalf,  .16. 
'  Mersereau  r.  Norton,  15  .Johns.  179;  Laild  r.  Hill,  4  Vermont.  164. 

*  Ladd  V.  Hill,  4  Verniorit,  164;  Uradley  v.  Arnold,  16  Il)id.  382;  White  v.  Morton, 
22  Ibid.  15;  M.lville  v.  Brown,  15  Mass.  79;  Eldrid-e  c.  Lanev,  17  Pick.  352;  Walker 
V.  Fitts,  24  Ibid.  191. 

f*  Frost  i:  Kello^rj!:,  23  Vermont,  308. 

*  Oystoad  r.  Slu-d,  12  Ma.->.  306. 

'  Brailford  r.  P.illaspie,  8  Dana,  67  ;  Oystend  v.  Shed,  12  >ras5.  506. 

*  Ohors  I'.  Hill,  3  MTonl,  3.38.  It  is  very  doubtful  whether  the  exemption  of  books 
of  accounts  and  ncjrotiablc  securities  from  direct  attachment  is  not  frau;;ht  with  evil, 
as  it  affords  an  abundant  opportunity  for  fraudulent  concealment  of  means  which  debtors 
have  for  payin*:  their  debts.  The  State  of  Ohio  in  its  Code  of  Civil  Procedure,  adopted 
in  1853,  and  the  State  of  Missouri,  in  1835,  have  taken  a  ver\'  important  step,  which 
deserves  to  be  followed  generally,  in  authori/inji  the  attachment  of  «//  books  of  account, 
accounts,  and  securities  of  the  debtor,  and  jdacin^  them  in  the  hands  of  a  receiver  ap- 
pointed by  the  court,  who  collects  them,  and  applies  the  proceeds  under  the  direction 
of  the  court.  Under  a  statute  requiring'  the  sherid"  to  attach  and  "  take  into  bis 
custody  all  books  of  account,  vouchers,  and  papers,  relating  to  the  property,  debts, 
credits,  and  effects  of  the  debtor,  together  with  all  evidences  of  his  title  to  real  estate; 
which  he  shall  safely  keep,  to  be  disposed  of  as  directed";  it  was  held,  that  letters  and 
correspondence  were  not  attachable ;  and  that  an  officer  who  assumed  to  examine  at- 
tached books  and  papers,  and  take  copies  of  business  letters,  and  look  into  the  corre- 
upondencc  of  the  defendant,  or  do  any  other  act  in  relation  to  them,  than  simply  to 
keep  them  safely,  subject  to  the  direction  of  the  judge  who  allowed  the  process,  was 

[172]' 


CHAP.  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.         §  2o0 

its  nature  so  peculiarly  perishable,  that,  manifestly,  the  purpose 
of  the  attacluneut  cannot  be  effected  before  it  will  decay  and  be- 
come worthless ;  as,  for  instance,  fresh  fish,  green  fruits,  and  the 
like.^  And  it  has  been  held,  that  a  growing  crop  of  grass  cannot 
be  attached.* 

§  250.   "Where  property  is  so  in  the   process  of  manufacture 
and  transition  as  to  be  rendered  useless,  or  nearly  so,  by  having 
that  process  arrested,  and  to  require  art,  skill,  and  care  to  finish 
it,  and  when  completed  it  will  be  a  different  thing,  it  is  not  subject 
to  attachment.     Such  are  hides  in  vats,  in  the  process  of  tanning, 
which,  if  taken  out  prematurely  and  dried,  could  never  be  con- 
verted into  leather,  or  restored  to  their  former  condition.^     Such, 
too,  are  a  baker's  dough  ;  materials  in  the  process  of  fusion  in  a 
glass  factory  ;  burning  ware  in  a  potter's  oven ;  a  burning  brick- 
kiln ;  or  a  burning  pit  of  charcoal.     In  all  such  cases,  the  officer 
cannot  be  required  to  attach  ;  fur  he  should  have  the  right  of 
removal  ;  and  he  is  not  bound  to  turn  arti-t,  or  conduct,  in  person 
or  by  an  agent,  the  process  of  manufacture,  and  be  rcsponsiljle  to 
both  parties  for  its  successful  termination.*     But  where  a  pit  of 
charcoal  was  in  part  entirely  completed,  so  as  not  to  require  any 
further  attention  or  labor,  and  the  residue  had  so  far  progressed 
in  the  process,  as  that  it  was  in  fact  completed,  but  some  labor 
and  skill  were  still  necessary,  in  order  to  separate  and  preserve  it 
properly  ;  it  was  held,  that  if  an  officer  saw  fit  to  attach  and  take 
possession  of  it,  and  run  the  risk  of  being  able  to  keep  it  properly, 

euilty  of  an  unpardonable  abuse  of  his  powers,  and  of  the  process  of  the  court;  and 
the  court  ordered  the  bo-As  and  paiKjrs  attached  to  l«  kept  under  lock  and  key,  without 
power  on  the  p.-rt  of  anv  one,  except  the  defendant,  to  examine  them;  and  requ.rcd 
the  officer  to  deliver  up  to  the  def.ndanfs  counsel  all  copies  taken  by  him.  and  to  make 
oatii  at  the  time  of  the  di-liv.rv,  that  such  copit-s  embraced  all  tliat  the  officer  btlievcd 
to  exist-  and  ordered  that  th.,-  phiintiflTs  euunsel  should  be  restrained  from  nsin-,  in 
anv  wttv  the  1m>A,  and  paj-ers  attache<l.  or  disclosintj  their  contents,  or  the  contents  of 
copies  taken  from  them.     Iler^man  t-.  Dettlebach,  11  Howard  Pract.  R.  46. 

1  Wallace  v.  Barker,  8  Vermont.  440.  In  Pcnhallow  v.  Dwi-lit,  7  Mass.  .34,  it  w.is 
held  that  an  entrv  on  land  for  the  j.urpose  of  levyin-  an  execution  on  unripe  corn  or 
other  produce,  which  would  vield  nothing,  but  in  fact  be  wxsted  and  destroyed  by  the 
very  a^t  of  seyerinR  it  from  the  soil,  would  be  illegal.  But  such  is  not  the  case  where 
the  produce,  such  as  com  and  potatoes,  is  ripe  for  the  hardest.     Heard  r.  Fairbanks,  5 

^^^'no^is  V  Watson,  2  Foster,  .364.  It  was.  in  Massachusetts,  soujrht  to  establish  the 
rule 'that  hay  in  a  bam  could  not  be  attached,  U-cause  of  the  difficulty  of  removing  it 
without  loss,  and  of  identifying  it;  but  the  court  refused  to  sustain  that  position. 
Campl)ell  c.  Johnson,  11  Mass.  184.  „,       ^     j   ^  xr         „*  iqa 

»  Bond  V.  Ward,  7  Mass.  123.  *  WUds  v.  Blanchard,  7  Vermont,  138. 

[1/3] 


§  2.")!  ATTACHMENT   OF   PKRSOSAL    mOPF-RTY.  [CHAI*.  X. 

ho  Jiad  a  right  to  do  so;  and  tlmt,  if  any  |)ortion  of  the  coal  shonM, 
tlirough  tho  want  of  proper  care  and  attention  on  his  part,  bo  de- 
stroyed, the  owner  cunM  not  maintain  trespass  against  him  for 
such  non-feasance,  and  tluit  the  attaching  creditor  was  not  liable 
therefor,  unless  the  omissions  were  by  his  command  or  assent.^ 

§  251.  Property  in  custodia  Jegi»  cannot  be  attached.  Thus, 
goods  attached  by  one  officer,  and  in  his  possession,  cannot  b.'  at- 
tached l)y  another  officer.-  So,  goods  held  by  a  collector  of  the 
revenue  of  tho  United  States,  to  enforce  payment  of,  or  as  security 
for,  tlie  duties  thereon,  are  not  attachable  by  a  creditor  of  the  im- 
I)ortcr.3  So,  where  a  ship  was  in  the  posses.sion  of  a  sherifT,  under 
an  attaciunent  issued  out  of  a  State  court,  it  was  held,  that  she 
could  not  bo  atUiched  by  a  marshal  of  tho  United  Slates,  under  a 
warrant  in  admiralty.*  Nor  can  proj)crty  attach«Ml  by  an  officer 
of  a  United  States  court  be  tiiken  out  of  his  hamls  by  an  officer 
under  process  issued  by  a  State  court.*  Repeated  attempts  havo 
been  made  to  levy  attachments  or  executions  ujwn  money  collected 
undor  execution  ;  but  sucli  money,  while  in  the  hands  of  tho 
officer  who  coUeottMl  it,  has  uniformly  been  held  to  be  in  cutitodia 
legis,  and  for  that  an<l  other  reasons,  not  subject  to  sudi  levy.* 
This  rule,  however,  applies  only  where  tl»e  sherifT  is  l)ound,  virtute 
offi'-ii,  to  have  the  money  in  hand  to  pay  to  the  execution  plaintifT; 
and  not  to  cases  in  which  he  has  in  his  pos.session,  after  satisfying 
the  execution,  a  surplus  of  money,  raised  by  the  sale  of  property. 
Such  surplus  is  the  property  of  the  execution  defendant,  and 
being  held  by  the  sherilT  in  a  private,  and  not  hi  his  official 
capacity,  it  may  be  attached  in  his  hands.' 

1  Hale  V.  Huntley,  21  Vermont,  147.  '  Post,  ^  267. 

»  Harris  r.  Donnie,  3  Peters,  292. 

*  The  Ship  HoLort  Fulton,  1  Paine,  620;  The  Oliver  Jordan.  2  Curtis,  414;  Taylor 
V.  Carrvl,  24  Penn.  State,  259,  and  20  Howard  Sup.  Ct.  583. 

6  Fri'eman  v.  Howe,  24  Howard  Sup.  Ct.  450;  Moore  i'.  Withenbusg,  13  Louisiana 
Annual,  22;  Lewis  v.  Buck,  7  Minnesota,  104. 

•i  Turner  r.  Fendall,  1  Craneh,  117  ;  Prentiss  i-.  Bliss,  4  Vermont,  513;  First  v.  Mil- 
ler, 4  Bihl),  31 1  ;  Dubois  v.  Dubois,  6  Cowen,  494  ;  Crane  r.  Freese,  1  Harrison,  .305  ; 
Dawson  v.  Holcomb,  1  Ohio,  135;  Rcddiek  r.  Smith,  4  Illinois  (3  Scainnion),  451  ; 
Thompson  v.  Brown,  17  Pick.  462;  Conant  v.  Bickneil,  1  D.  Chipman,  50;  Farmers' 
Bank  r.  Beaston,  7  Gill  &  Johnson.  421  ;  Jones  v.  Jones,  1  Bland.  443  ;  BInir  w. 
Cantey,  2  Speers,  34 ;  Burrell  v.  Letson.  1  Strobhart,  239 ;  Clymer  r.  Willis,  3  Califor- 
nia,  363.  These  authorities  bear  on  the  question  of  seizing  the  money  i"»  .«/«■<■/,■.  For 
those  applicable  to  an  attempt  to  reach  it  by  fiarnishment,  see  Chai>ter  XXIL 

1  Orr  I'.  McBride,  2  Carolina  Law  Repository,  257  ;  Watson  i-.  Todd,  5  Mass.  271  ; 
Davidson  v.  Clavland,  1  Harris  &  Johnson,  546 ;  Tucker  v.  Atkinson,  1  Humphreys,  300. 
[174]' 


CHAP.  X.]  ATTACH5rENT   OF   PERSONAL   PROPERTY.  §  251 

Upon  the  principle  that  property  in  custodia  legis  is  exempt  from 
attachment,  it  has  been  hekl,  that  money  paid  into  the  hands  of 
a  clerk  or  prothonotary  of  a  court  on  a  judgment,^  or  which  is  in 
his  possession  in  virtue  of  his  office,^  cannot  be  attached.  So,  of 
money  paid  into  court.^  So,  of  property  in  the  hands  of  an 
administrator,  which  will  belong  to  the  defendant  as  distributee, 
after  settlement  of  the  administrator's  accounts.*  So,  property  in 
tlie  hands  of  an  executor  cannot  be  attached  in  a  suit  against  a 
residuary  legatee  or  a  devisee.*  So,  property  of  a  person  who  has 
been  judicially  found  to  be  insane  cannot  be  attached  in  the  hands 
of  his  guardian.^  So,  it  has  been  held,  that  garnishment  has  the 
efTect  to  place  the  property  in  the  garnishee's  hands  in  the  custody 
of  the  law,  and  that  an  officer  has  no  right,  after  the  garnisluiient, 
to  take  the  property  from  the  garnishee."  But  in  Massachusetts 
it  was  decided  that,  though  garnishment  is  an  attachmf^n<"  of  the 
effects  in  the  garnishee's  hands,  yet  they  may  be  attached  and 
taken  into  the  possession  of  the  officer,  subject  to  the  lien  of  the 
creditor  who  effected  the  garnishment.^ 

A  case  of  interest  and  importance  is  reported  in  Louisiana,  in 
which  the  doctrine  now  under  consideration  was  applied.  A  suit 
in  chancery  was  instituted  in  Memphis,  Tennessee,  by  stockholders 
of  a  bank  there,  against  the  bank  and  its  president  and  directors ; 
in  which  a  receiver  was  aj>pointed,  an  injunction  obtained,  and  an 
order  for  the  delivery  of  the  assets  of  the  bank  to  the  receiver, 
served  on  the  president ;  who,  during  an  unsuccessful  attempt  to 
enforce  the  process  of  the  court,  obtained  possession  of,  and  ran 
off  with,  the  assets  to  New  Orleans,  where  they  were  attached  in 
his  hands  by  a  creditor  of  the  bank,  and  were  claimed  in  the  at- 
tachment suit  by  the  receiver  appointed  by  the  court  in  Tennessee. 
The  New  Orleans  court  promptly  ordered  them  to  be  released  from 
the  attachment,  and  delivered  to  the  receiver.* 

»  Rom  v.  Clarke,  1  Dallas,  354  ;  Allston  r.  Clay,  2  Hajrwood  (N.  C),  171. 

'  Hunt  V.  Sttvtns,  3  Iredell,  365. 

'  Fiirmcrs'  Bunk  v.  Bea.ston,  7  Gill  &  Johnson,  421. 

*  Klliott  r.  Xfwhv,  2  Hawks,  21  ;  Youn^'  v.  Young,  2  Hill  (S.  C),  425. 
'  Thornhill  v.  Christmas,  11  Robinson  (La.),  201. 

'  Hale  V.  Duncan,  Bravton,  1.32. 

T  Scholefield  v.  Bradlee,  8  Martin,  495 ;  Brashcar  v.  West,  7  Peters,  608 ;  Dennis- 
toun  I'.  New  York  C.  &  S.  F.  Co.,  6  Louisiana  Annual,  782. 

•  Burlinjjame  v.  Bell,  16  Ma*s.  318 ;  Swett  v.  Brown,  5  Pick.  178. 

»  Paradise  v.  Farmers  and  Merchants'  Bank,  3  Louisiana  Annual,  710.  From  the 
opinion  of  the  court  the  following  extract  is  presented.     "  The  property  which  thus 

[175] 


§  252  ATTACHMENT   OF   PEHSONAL   PROPERTY.  [cllAP.  X 

In  Alabama  this  case  occurred.  An  attachment  was  placed  iii 
the  hands  of  a  sheriff,  and,  before  its  levy,  a  writ  of  seizure  was 
issued  by  a  court  of  chancery,  and  directed  to  the  same  officer. 
"With  both  writs  in  his  hands  he  attempted  to  execute  l)oth  at  tho 
same  time  ;  but  it  was  held,  that  the  attachment  was  inoi)crativc, 
and  must  give  way;  that  he  could  not  qualify  and  restrict  tho 
custody  which  he  took  for  the  court,  under  tho  writ  of  seizure, 
with  the  levy  of  tbe  attachment,  unless  he  had  the  projHjrty  under 
his  control ;  and  the  moment  he  acquired  that  control,  the  prop- 
crty  was  in  the  custody  of  the  court.^ 
• 

§  252.  It  has  been  attempted  to  apply  in  this  country  the  rule 
of  the  Enghsh  law  of  distress,  exempting  from  seizure  whatever 
is  in  a  party's  present  use  or  occupation  ;  but  the  attempt  has  met 
with  only  partial  success.     In  Tennessee,  a  levy  on  a  blacksmith's 

gtands  before  us  for  adjudication  appears  to  have  hcen  lironght  within  tho  jurisdiction 
of  this  court  in  disoUdiencc  and  in  violation  of  the  procfs.s  of  a  court  of  a  Hister  State, 
and  in  fr:iudiiliiit  violation  of  the  ri-hta  (.f  projKTty  of  its  n-ul  owners.  It  is  proved, 
that  the  i.nKCss  of  the  court  of  clmnory.  an<l  a  writ  of  injunction,  and  an  onler  directs 
inj;  the  delivery  of  the  a.ssets  of  the  hunk  forthwith  to  the  receiver,  were  duly  »er>ed  on 
Fowlkes  [the  jiresident]  as  well  as  the  directors  of  the  Imnk. 

"  The  Kroun.ls  ..n  which  it  is  contended  the  judgment  of  tho  district  court  [ordering 
the  proiK-rty  to  he  delivered  to  the  nn-civer]  is  to  1k>  reversed,  are:  1.  That  a  receiver 
in  chancery  cannot  maintain  a  suit  without  sp^'cial  authority  from  the  court  which 
apjioints  him.  2.  That  the  iK)sscssion  of  the  pr<Ji>erty  attached,  not  havin;;  »Rvn  in 
the  receiver,  it  is  liable  ty  the  process  of  attachment  at  tl>c  instance  of  a  botu'i  Jide  cred- 


itor 


'•  We  will  not  iiKiuire  into  the  technical  question  whether  the  autliority  of  the  chan- 
cellor is  nccessarv  to  institute  a  suit  at  law  ;  it  is  sufficient  for  us  that  property,  in 
relation  to  which  "an  order  of  a  court  of  a  sister  State  of  eom|)etent  jurisdiction  has  hcen 
issued,  has  been  fraudulently  or  forcibly  withdrawn  from  its  jurisdiction  by  a  party  to 
tho  suit,  and  that  the  injunction  issued  in  this  case  by  the  chancellor  is  still  in  force  and 
bindinf:  upon  the  oflfendin";  party.  The  order  of  tho  court  of  chancery  is  a  sufficient 
authority  for  the  intencnor  [the  receiver]  to  receive  the  assets  of  the  bank;  and  the 
delivery  to  him  will  be  a  good  delivery,  bindinj,'  uixjn  the  bank,  as  well  as  in  the  fur 
thcrance  of  justice.  We  have  uniformly  discountenanced  all  attempts,  in  whatever 
form  they  may  be  made,  of  makin;;  our  courts  instruments  for  defeating  the  action  of 
courts  of  other  States  on  property  within  their  jurisdiction,  by  means  of  clandestine  or 
forcible  removal  to  this  State.  The  only  decree  we  render  in  such  cases  is  that  of 
immediate  and  prompt  restitution,  or  one  preventing  any  rights  to  be  acquired  by  these 
attempts  to  defeat  the  ends  of  justice. 

"  This  is  an  answer  to  the  question  raised  concerning  the  peculiar  right  of  the  credi- 
tor. The  only  ri;;ht  which  he  in  any  event  could  reach,  would  be  subordinate  to  the 
injunction  from  the  operation  of  whidi  this  property  has  been  attempted  to  be  removed. 
Not  only  on  general  principles,  but  on  the  cases  cited  by  the  learned  judge  who  decided 
this  case,  the  claim  of  the  plaintiff  to  subject  this  property  to  attachment  is  without  the 
shadow  of  right.  See  Wingate  v.  Wheat,  6  Louisiana  Annual,  238  ;  Myers  r.  Myers,  8 
Ibid.  369. 

1  Read  r.  Sprague,  34  Alabama,  101. 
[176] 


CHAP.  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.         §  252 

tools,  while  he  was  using  them,  was  sustained.^     And  so,  in  Mas- 
sachusetts, was  an  attachment  of  a  stage-coach,  actually  in  use.^ 

Those  are  instances  of  personal  property  not  worn  about  the 
defendant's  person.  In  regard  to  property  so  worn,  the  English 
doctrine  in  relation  to  distress  was  fully  adopted  by  the  Supreme 
Court  of  Massachusetts  in  a  case  where  an  officer  into  whose  hand 
the  defendant  placed  a  watch,  to  compare  its  weight  with  that  of 
another,  took  it,  under  an  attachment,  from  the  person  of  the 
defendant,  by  severing  a  silk  band  which  passed  about  his  neck, 
and  to  which  the  watch  was  attached.  The  court  held,  that  the 
seizure  was  wrongful,  and  that  the  watch  could  not  be  held  under 
the  attachment.^ 

1  Bell  r.  Dou>;Iasd,  1  Yerger,  397. 

2  Potter  r.  Uai\,  3  Piuk.  3C8.  Parker,  C.  J.,  said  :  "It  is  said  that  property  in  actual 
nse  was  not  subject  by  the  common  law  to  distress  for  rent,  and  that  the  same  law  is  to 
determine  what  projjerty  is  or  is  not  attachable  under  our  statutes.  The  principles  of 
the  coiniuon  law  will  undoubtedly  apply,  l>ecauso  founded  on  reason ;  but  the  applica- 
tion of  thcs.-  principles  may  be  different  now,  from  that  which  was  made  several  hun- 
dred years  aj;o.  wlan  the  rule  was  laid  down.  The  state  of  the  country  then  required 
larger  e.vemptions  than  at  present.  Everything  was  then  subservient  to  agriculture. 
Now  comniene  and  cre<lit  assume  an  e<}ual  rank,  and  things  which  were  necessary  for 

a  man's  living  at  a  former  period  have  cea.<ed  to  be  so The  cases  put  in  Comyns's 

Digest  to  illustrate  the  general  position,  that  chattels  in  actual  use  are  not  to  be  taken 
in  distre.-is.  show  ihut  the  rule  was  ap|)lied  to  things  comparatively  of  small  value,  and 
such  as  could  not  l>e  taken  without  great  inconvenience,  and  in  some  of  the  cases  they 
were  other  persons'  property  accidentally  upon  the  land  ;  a  horse  actually  in  riding,  or 
going  to  mill,  or  standing  at  the  miller's  door,  &c.  To  apply  a  rule  which  had  pro- 
tected such  kind  of  profA-rty  to  articles  of  luxury,  or  of  great  value,  would  be  contrary 
to  the  reason  of  the  common  law.  Stnge-coaclies  arc  often  of  great  value,  and  many 
of  them  owni-d  by  the  same  i)erson.  Ships,  steamboats,  &c.,  come  within  the  same 
reason  ;  cn-ditors,  and  credit  itself,  would  be  exceedingly  injured,  if  they  were  held 
free  from  attachment." 

»  Mack  I'.  Parks.  8  Gray,  517.  The  following  are  the  views  expressed  by  the  court: 
"The  justitication  on  which  the  defendant  relies  in  answer  to  the  trespass  alleged  in 
the  declaration  de|K;nds  on  the  right  of  tlic  sheriff  or  other  officer  to  attach  on  mesne 
process  articles  worn  on  the  i:)erson  of  the  debtor  iis  part  of  his  dress  or  apparel,  at  the 
time  when  the  atuchment  is  made,  or  then  in  his  actual  possession  and  use. 

"  We  are  not  aware  that  any  such  right  has  ever  before  been  asserted  in  this  Com- 
monwealth. There  is  no  judicial  recognition  of  it,  and  we  are  quite  sure  that  there 
has  never  been  any  attempt  practically  to  enforce  it.  It  can  hardly  be  supposed  that 
the  omi.s>ion  to  exercise  it  has  been  caused  by  forl)earance  or  ignorance.  Creditors  are 
not  apt  to  slumber  over  their  rights,  or  lose  them  for  want  of  vigilance,  or  out  of  ten- 
derness towards  their  delinquent  debtors.  This  consideration  is  entitled  to  great 
weight,  because  we  are  to  seek  for  the  origin  and  foundation  of  the  right  on  which  the 
defJndant  rests  his  justification,  among  those  well  understood  and  recognized  usages 
and  customs  which  have  become  a  part  of  our  unwritten  law. 

"  By  the  Rev.  Sts.  c.  90,  ^  24,  it  is  provided  that  all  goods  and  chattels  that  are  liable 
to  be  taken  on  execution  may  be  attached,  'except  such  as,  from  their  nature  or  situa- 
tion, have  been  considered  as  exempted  from  attachment,  according  to  the  principles 
of  tile  common  law  as  adopted  and  practised  in  this  State.'  ....  With  a  few  excep- 
tions, the  kind  of  goods  lawfully  subject  to  distress  or  attachment  has  never  been  do- 
12  [!"'] 


§  252  a  ATTACHMENT   OF   PERSONAL   PROPERTY.  [ciIAP.  X- 

§  252  a.   Tlio  property  of  individuals  or  corporations  wlio  owo 
duties  to  the  public,  is  not  for  that  reason  exempted  from  liability 

fined  by  stntiito,  either  under  the  Colonial  or  State  government     It  mast  therefore  b« 
determined  Uy  tlie  common  hiw. 

"  It  seems  to  be  perfectly  well  settled  at  common  law,  that  chattels  in  the  actual  pos- 
session and  use  of  a  debtor  cannot  be  tJiken  or  distrained.  It  is  laiil  down  in  Co.  Lit. 
47  a,  that  'althoii^jh  it  be  of  valuable  pro|)erty,  as  a  horse,  &c.,  yet  when  a  nnin  or 
woman  is  riding  on  hint,  or  an  axe  in  a  man's  hand  cuttin;;  of  wood  and  the  like,  they 
are  for  that  time  privi!ei;ed,  and  cannot  l>e  distrained.'  So  'if  nets  are  in  the  hands 
of  a  man  they  cannot  be  distrained  any  more  than  a  horse  on  which  a  man  is.'  Har- 
grave's  note  (a'J4).  S.  V.  Head  i'.  Hurley,  Cro.  Kliz.  5.19,  596.  In  the  leiidinj;  case 
of  Sinip>on  r.  llartopp,  Willes,  512,  wiiich  Mr.  Justice  Hullkr  says  (4  T.  U.  5G8)  is 
'of  ;:reat  authority,  because  it  was  twice  ar;;uetl  at  the  bar,  and  I^jrd  Chief  Justice 
WiLi.KS  took  intinite  pains  to  trace  with  accuracy,  those  thin;;s  which  arc  priviie;;ed 
from  distress,'  it  is  distinctly  adjudged  that  things  in  actuid  use  cannot  be  taken  or 
distrained ;  and  the  reason  ^^ivcn  is,  that  an  attempt  to  distrain  such  articles  would 
lead  to  a  breach  of  the  peace.  In  the  moilern  case  of  Sunbolf  r.  Alford.  3  .M.  &  W. 
253,  it  is  laid  down  an  well-settle<l  law,  that  '  gfxxls  in  the  actual  possession  and  use  of 
the  debtor  cannot  be  distrained';  'a  man's  clothes  cannot  be  taken  otV  his  back  in 
execution  o(  ii  Jii-ri  fUriiui.'  The  main  j^round  on  which  these  and  other  authorities 
rest  is,  that  it  would  tend  directly  to  a  collision  and  bnach  of  the  jK-ace,  if  articles 
thus  situated  were  allowed  to  be  taken  from  the  bands  of  a  debtor.  Ciorton  v.  Falkner, 
4  T.  U.  5G5 ;  Ston-y  v.  Uobinson,  6  T.  U.  139 ;  Adamcs  r.  Field,  12  Ad.  &  Kl.  649.  and 
4  Perry  &  Dav.  5iH  ;  Com.  Di;;.  Distress  C. ;  Ciilbert  on  Distresses,  43.  There  are  many 
articles  of  personal  projR'rty,  subject  to  attachment  under  our  laws  and  usajjjes,  which 
could  not  have  been  ilistrained  or  taken  at  common  law  under  the  rule  as  stated  in  the 
earliest  authorities.  Totter  r.  Hall,  3  I'irk.  308.  But  in  the  absence  of  luiy  jiroof  of 
tisapc  or  custom  in  this  State,  from  which  it  mi^ht  be  inferred  that  a  ditlerent  rule 
of  law  has  ever  been  ado|)ted,  the  present  case  falls  within  the  principles  on  which  the 
Enj^lish  authorities  rest,  and  must  Ix-  j:overned  by  them. 

"The  watch,  at  the  time  it  was  taken  by  the  defendant,  was  in  the  j)laintiH"s  actual 
possession  and  use,  worn  as  part  of  his  dress  or  apparel,  and  was  severed  from  his 
person  by  force.  Such  an  act,  if  permitted,  would  tend  quite  as  directly  to  a  breach 
of  the  j)eace  as  to  take  from  a  man  the  horse  on  which  he  was  riilinj;,  or  the  axe  with, 
which  he  was  fellinj,'  a  tree.  It  is  indeed  a  more  j^ross  violation  of  the  sanctity  of  the 
person,  and  tends  to  a  greater  aggravation  of  the  feelings  of  the  debtor.  Nor  would 
it  be  practicable  to  place  any  limit  to  the  exercise  of  such  a  right.  If  allowed  at  all, 
it  must  extend  to  every  article  of  value  usually  worn  or  carried  about  the  person  ;  if  an 
officer  can  sever  a  silken  cord,  he  nmy  likewise  break  a  metallic  chain ;  if  he  can  seize 
and  take  a  watch,  so  he  may  wrest  a  breastpin  or  earring  from  the  f)erson,  or  thrust  his 
hand  into  the  pocket  and  carry  oft"  money  ;  he  may,  in  short,  resort  to  any  act  of  force 
necessary  to  eind)le  him  to  attach  i)roperty  in  the  personal  custody  of  the  debtor.  It  is 
obvious  that  such  a  doctrine  would  lead  to  consequences  most  dangerous  to  the  good 
order  and  jieace  of  society 

"  It  is  no  answer  to  this  action,  that  the  defendant  tendered  to  the  plaintiff  the  value 
of  the  cord  by  which  the  watch  was  attached  to  the  person,  or  that  ti.e  watch  itself, 
detached  from  the  person,  wiis  subject  to  attachment.  The  wrong  consists  in  having 
taken  an  article  from  the  person  of  the  plaintiff,  which  was  at  the  time  by  law  ex- 
empted from  attachment.  The  mode  in  which  it  was  done  is  wholly  immaterial.  He 
is  liable  for  the  value  of  the  watch,  being  a  trespasser  ab  initio.  '  Xo  lawful  thing, 
founded  on  a  wrongful  act,  can  be  supported.'  Luttin  v.  Benin,  11  Mod.  50;  Ilsley  v. 
Nichols,  12  Pick.  270.  The  watch,  although  liable  to  attachment  if  it  had  been  taken 
by  the  defendant  when  not  connected  with  the  person  of  the  plaintiff,  was  wrongfully 
seized,  and  cannot  now  be  held  under  the  attachment." 

[178] 


CHAP.  X]  ATTACmiENT   OF   PERSONAL   PROPERTY.  §  253  a 

to  attachment,  except  so  long  as  it  is  in  actual  use  in  the  discharge 
of  such  duty.  Thus,  where  a  steamboat  was  attached,  which  was 
ordinarily  employed  by  her  owner  in  transporting  the  mail  be- 
tween New  Orleans  and  Mobile,  but  at  the  time  of  the  attachment 
was  not  so  engaged,  and  had  not  a  mail  on  board  ;  her  connection 
with  the  mail  service  was  urged,  as  a  ground  for  releasing  her 
from  the  attacliment,  because  the  seizure  was  a  violation  of  the 
act  of  Congress  against  obstructing  the  mails;  but  this  position 
was  overruled,  and  the  attachment  sustained.^  And  so  it  was  held 
in  regard  to  the  rolling  stock  of  a  railroad.^ 

§  253.  It  is  not  necessary  that  the  defendant's  property,  in 
order  to  be  subject  to  attachment,  should  be  in  his  possession.  It 
may  be  attached  wherever  found.^ 

§  253  a.  Personal  property  found  in  the  defendant's  possession 
is  presumed  to  be  his,  if  nothing  appear  to  the  contrary,  and  may 
and  should  be  attached  as  such.*  If  an  officer  omit  to  attach  it 
when  so  found,  and  when  its  attachment  is  necessary  for  the  plain- 
tiff's security,  he  cannot  l>e  excused,  imless  he  prove  that,  not- 
withstanding sucli  appearances,  the  property -was  not  in  fact  the 
defendant's,  —  in  which  case  the  burden  of  proof  rests  upon  the 
officer ;  or  unless,  where  there  were  reasonable  grounds  to  suspect 
that  the  defendant  was  not  the  owner,  the  plahitiff  refused  —  what 
the  officer  in  such  cases  has  always  a  right  to  demand^ — to  in- 
demnify the  officer  for  any  mistake  he  might  make  in  conforming 
to  the  plaintiff's  direction.^  In  an  action  against  an  officer  for 
such  an  omission  the  burden  of  proof  of  damage  is  upon  the  plain- 
tiff ;  damage  cannot  be  inferred.^ 

1  Parker  v.  Porter,  6  Louisiana,  169.  In  Massachusetts  the  question  was  raised 
•whether  the  Iwat,  cable,  and  anchor  of  a  vessel  could  be  attached  and  separated  from 
the  vessel.  The  court  said  that  this  mitrht  depend  upon  the  situation  of  those  articles 
in  relation  to  the  vessel.  If  taken  when  in  use  and  necessary  to  her  safety,  the  taking 
would  subject  the  party  taking  them  to  damaj^es.  But  if  the  vessel  were  at  a  wharf, 
and  her  cable  and  anchor  and  boat  not  in  use,  there  was  no  reason  why  they  mij^ht  not 
as  well  be  taken  as  the  harness  of  a  carria;,'e,  or  the  sails  and  rigging  of  a  vessel  when 
separated  from  the  hull  and  laid  up  on  shore.     Briggs  v.  Strange,  17  Mass.  405. 

•^  Boston,  C.  &  M.  H.  R.  Co.  v.  Gilraore,  37  New  Hamp.  410. 

*  Graighle  v.  Notnagic,  Peters,  C.  C.  245 ;  Livingston  v.  Smith,  5  Peters,  90. 

*  Killey  v.  Scanncll,  12  California,  73. 

6  Bond  (;.  Ward,  7  Mass.  123 ;  Sibley  v.  Brown,  15  Maine,  185 ;  Smith  v.  Cicotte,  11 
Michigan,  383;  Ranlett  v.  Blodgett,  17  New  Hamp.  298;  Chamberlain  v.  Beller,  18 
New  York,  115. 

*  Bradford  r.  McLellan,  23  Maine,  302.  '  Wolfe  v.  Dorr,  24  Maine,  104. 

[179] 


§  255  a  ATTACHMENT  OF  PERSONAL  PROPERTY.      [CHAI'.  X. 

§  254.  Tlie  possession  of  poisonal  property,  though  an  inJicium 
of  ownership,  does  not  render  it  liuble  to  attachment  for  the  debt 
of  the  j)ossessor  who  is  nut  tlio  owner,  unless,  perhaps,  liis  posses- 
sion he  fraudulent  and  intended  for  colorable  purposes.^  Thus, 
where  a  sou  purchased  a  fai'ui  and  stocked  it,  with  a  view  to 
furnishing  a  home  for  an  indigent  father,  and  jjermilted  the  father 
to  reside  and  lalior  there,  the  products  of  the  farm  were  held  not 
sul>ject  to  attachment  for  the  father's  dcbts.^  So,  where  one  do- 
livers  to  a  workman  materials  to  be  manufactured  ;  the  article  into 
which  the  materials  are  wrought  cannot,  when  finished,  be  at- 
tached as  the  pro|)erty  of  the  workman,  even  though  he  should 
have  put  into  it  materials  of  his  own.^ 

§  2.").').  II.  Requisites  of  a  valid  Attachment  of  Personalty. 
When  an  attachment  is  delivered  to  an  ofiicer,  no  lien  on  tho 
defendant's  propcM'ty  is  thereby  createtl,  but  a  levy  is  neces.^ary  ;* 
and  the  first  levy  olttains  the  first  right  to  satisfaction/'  unless,  as 
in  some  States,  all  the  defendant's  creditors  are  allowed  to  como 
in  and  share  eciually  the  avails  of  the  first  attachment.  Ilenco 
the  necessity  that  the  officer  should  proceed  at  once  with  tho 
execution  of  the  writ.  And  as  unnecessary  delay  in  completing 
the  attachment  might  open  the  way  for  other  officers,  having  other 
writs,  to  seize  the  property,  tlie  first  attaching  officer  should  con- 
tinue the  execution  of  the  process,  with  as  little  intermission  as 
possible,  until  his  duty  is  completed. 

§  255  a.  What  will  constitute  a  levy  as  against  the  defendant, 
is  a  difTerent  question  from  what  will  constitute  one  as  against 
third  persons.  A  levy  may  be  good  as  against  tlie  former,  that 
would  not  as  against  the  latter.  But  this  distinction  is  not  based 
upon  any  di (Terence  in  the  legal  requisites  of  a  levy,  but  on  the 
fact  that  the  conduct  of  the  defendant,  either  by  positive  or  nega- 
tive acts,  may  amount  to  a  waiver,  or  an  estoppel,  or  agreement 
that  that  shall  be  a  levy  which,  without  such  conduct,  would  not 
be  sufficient.^     In  either  case,  however,  the  general  principle  may 

1  Moon  ii.  Hawks,  2  Aikcns,  390  ;  "Walcot  u.  Pomeroy,  2  Pick.  121. 
-  Brown  v.  Scott,  7  Vermont,  57. 

3  Stevens  v.  Biiggs,  5  Pick.  177  ;  Gallup  v.  Josselyn,  7  Vermont,  334. 
*  Ante,  §  221. 

6  Crowninshield  r.  Strobel,  2  Brevard,  80 ;  Robertson  r.  Forrest,  Ibid.  466 ;  Bethuna 
V.  Gibson,  Ibid.  501  ;  Crocker  i-.  Kadclifte,  3  Ibid.  23. 
8  Tatfts  V.  Manlove,  14  California,  47. 
[180] 


CHAP.  X.]       ATTACHMENT  OF  PERSONAL  PROPERTY.         §  256 

be  laid  down,  tliat  the  acts  of  the  officer,  as  to  asserting  his  rights, 
and  devesting  the  possession  of  the  defendant,  should  be  of  such 
character  as  would  subject  him  to  an  action  as  a  trespasser,  but 
for  the  protection  of  the  process.^ 

§  256.  An  officer,  in  attaching  personalty,  must  actually  reduce 
it  to  possession,  so  far  as,  under  the  circumstances,  can  be  done ;  ^ 
though  in  doing  so,  it  is  not  necessary  that  any  notoriety  should 
be  given  to  the  act.  in  order  to  made  it  effectual.^  What  is  an 
actual  possession,  sufficient  to  constitute  an  attachment,  must  de- 
pend upon  the  nature  and  position  of  the  property.  In  general, 
it  may  be  said,  that  it  should  l>e  such  a  custody  as  will  enable  the 
officer  to  retain  and  assert  his  power  and  control  over  the  property, 
so  as  that  it  cannot  probably  be  withdrawn,  or  taken  by  another, 
without  his  knowing  it.* 

In  Connecticut,  a  ca.se  is  reported,  where  the  doctrine  is  laid 
down,  that,  to  cfTect  a  valid  attachment  of  goods,  the  officer  must 
have  the  actual  possession  of  them,  as  contradistinguished  from  a 
constructive  possession.  The  facts  of  the  case  were  these  :  A., 
having  an  attachment  against  B.,  went  to  levy  it  on  a  barouche 
that  was  in  B.'s  carriage-house,  and  obtained,  for  that  purpose,  the 
key  of  the  house.  C,  having  also  an  attachment  against  B.,  went 
near  the  house,  and  concealed  himself.  When  A.  opened  the  door, 
he  declared  that  lie  attached  all  tlio  carriage  and  harness  in  the 
house ;  but  before  he  actually  touched  the  carriage,  C.  sprang  in 
and  seized  it.  The  court  sustained  the  attachment  made  by  C, 
on  the  following  grounds  :  "  The  only  object  of  attachment  is  to 
take  out  of  the  defendant's  possession,  and  to  transfer  into  the 
custody  of  the  law,  acting  through  its  legal  officer,  the  goods  at- 
tached, that  they  may,  if  necessary,  be  seized  in  execution,  and  be 
disposed  of  and  delivered  to  the  purchaser.  Hence,  the  legal 
doctrine  is  firmly  established,  that  to  constitute  an  attachment  of 

1  Bcckman  r.  Lansin;,',  .3  Wcndall,  446 ;  Wcstcnelt  r.  Pinkney,  14  Ibid.  123;  Camp 
F.  Chainla-rlain,  5  Di-nio,  198;   (jfwde  r.  Longmirc,  .35  Alabama,  668. 

*  Lane  r.  .Jackson,  5  Ma.ss.  l.=)7  ;  Ashmnn  c.  Williams,  8  Pick.  402  ;  Lyon  v.  Rood,  12 
Vermont,  2.33;  Taintor  c.  Williams,  7  Conn.  271  ;  Ilollistcr  r.  Goodale,  8  Ibid.  332; 
Odiornc  r.  ^'olley,  2  Xiw  Hamp.  66;  Huntinj,'ton  v.  Biaisdcll,  2  Ibid.  317;  Dunklee 
r.  Falc-,  5  Ibid.  527 ;  Cliadbournc  v.  Sumner,  16  Ibid.  129;  Blake  v.  Hatch,  25  Ver- 
mont, 555;  Gale  i\  Ward,  14  Mass.  352;  Stockton  r.  Downey,  6  Louisiana  Annual, 
581  ;  Wuotiworth  e.  Lemmcrman,  9  Ibid.  524;  Learned  c.  Vaudenburgh,  7  Howard 
Pract.  R.  379. 

»  Hemmenway  v.  Wlieeler,  14  Pick.  408  ;  Tomlinson  v.  Collins,  20  Conn.  364. 

*  Hemmenway  v.  Wheeler,  14  Pick.  408. 

[181] 


§  25G         ATTACHMENT  OF  TERSONAL  PROPERTY.      [rUW.   X. 

goods  tlic  officer  must  have  the  actual  ponsessiou  and  cuatody.  That 
tlio  phuutiff  was  at  the  door  of  the  carriage-house,  with  a  writ  of 
attaclniicnt  in  his  hand,  only  proves  an  intention  to  attach.  To 
this,  no  accession  is  made  hy  the  lawful  possession  of  the  key,  and 
the  unlocking  of  the  door.  Suppose,  what  does  not  appear,  that 
the  key  was  dolivered  to  him  hy  the  owner  of  the  carriage,  that 
he  might  attach  tlie  property ;  this  would  be  of  no  account.  He 
might  have  the  constructive  possession,  whicli,  on  a  sale,  as  be- 
tween vendor  and  vendee,  would  he  sulTicient;  but  an  attachment 
can  only  be  made  by  the  taking  of  actual  possession.  As  little 
importance  is  attached  to  the  uidocking  of  the  door,  and  the  dec- 
laration that  the  plaintiff  attached  the  carriage.  This  was  not  a 
touching  of  the  property,  or  the  taking  of  the  actual  possession. 
The  removal  of  an  obstacle  from  the  way  of  attaching,  as  the 
opening  of  the  door,  is  not  an  attachment,  nor  was  the  verbal 
declaration.  An  attachment  is  an  act  done  ;  and  not  a  mere  oral 
annunciation.  From  these  various  acts,  taken  separately  or 
conjointly,  the  {)lainti(T  did  not  obtain  tlie  possession  and  cus- 
tody of  the  carriage,  and  therefore  lie  did  not  attach  the  prop- 
erty." 1 

The  views  expressed  in  this  case,  it  is  believed,  are  not  sustained 
in  any  other  State ;  but,  on  the  contrary,  the  decisions  seem  to  be 
with  unanimity  the  other  way.  It  has  been  repeatedly  held,  that 
personal  property  may  be  attached  without  the  officer  touch- 
ing it. 

In  Maine,  the  doctrine  was  laid  down  that,  to  constitute  an  at- 
tachment, it  is  not  necessary  that  the  officer  should  handle  the 
goods  attached,  but  he  must  be  in  view  of  them,  with  the  power 
of  controlling  thcrn,  and  of  taking  them  into  his  j)ossession. 
Therefore,  where  it  appeared  that  the  officer  went  upon  premises 
of  the  defendant  with  an  attachment,  and  before  leaving,  declared 
to  a  person  who  was  accustomed  to  work  there,  that  he  had  at- 
tached the  property  there,  and  requested  the  person  to  forbid  any 
one  taking  the  things  away,  but  did  not  give  the  property  into  the 
custody  of  that  person,  and  then  left,  and  did  not  return  to  take 
the  property  into  his  possession  ;  the  court  held,  that  tUe  attach- 
ment might  be  sufficient,  if  followed  by  the  continual  presence  of 
the  oflficer,  or  of  some  one  on  his  behalf.^ 

In  New  Hampshire,  the  court  say  that  a  valid  attachment  is  not 

1  Hollister  i-.  Goodale,  8  Coau.  332.  2  Nichols  v.  Patten,  18  Maine,  231. 

[18-2] 


CHAP  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.         §  256 

effected,  unless  the  articles  are  taken  into  the  officer's  actual  cus- 
tody, or  are  placed  under  his  exclusive  control ;  by  which  actual 
custody  and  exclusive  control  they  do  not  mean  that  he  must 
touch   and   remove   every  article  before  an   attachment   can  be 
deemed  valid,  but  that  the  articles  must  be  so  within  his  power  as 
to  enable  him  to  touch  or  remove  them.i     In  a  subsequent  case  in 
the  same  State,  where  an  officer  was  in  a  house,  levying  an  attach- 
ment on  furniture,  and  another  officer  entered  a  chamber  of  the 
house  not  yet  reached  by  the  first,  and  attached  the  articles  therein, 
the  court  held  the  proceedings  of  the  first  officer  to  amount  to  an 
attachment  of  the  whole  effects,  and  that  the  second  officer's  at- 
tachment was  illegal ;  and  they  say,  "  The  whole  articles  must 
doubtless  be  within  the  power  of  the  officer.     That  is,  they  must 
not  be  inaccessible  to  him  by  their  distance,  or  by  being  locked  up 
from  his  reach  in  an  apartment  not  under  his  control ;  or  by  bemg 
.0  covered  with  other  articles,  or  so  in  the  custody  of  another  per- 
^ou    that  the  officer  cannot  see  and  touch  them."^     Again,  the 
same  court  held,  that,  to  make  an  attachment,  the  officer  must 
take  possession  of  the  goods  ;  but  that  it  is  not  necessary  that  the 
goods  should  be  removed  ;  but  they  must,  in  all  cases,  be  put  out 
of  the  control  of  the  debtor.^ 

In  Vermont,  it  is  unnecessary  that  the  officer  should  actually 
touch  the  property,  but  he  must  have  the  custody  or  control  of  it, 
in  such  a  way  as  either  to  exclude  all  others  from  taking  it,  or,  at 
least  to  <r\ye  timely  and  unequivocal  notice  of  his  own  custody .* 
Therefore,  where  an  officer  attaching  goods  in  a  building,  fastened 
the  windows,  locked  the  door,  and  took  the  key  into  his  possession, 
it  was  held  a  sufficient  taking  possession  of  the  goods,  as  respects 
subsequent  attachments,  even  though  he  carelessly  failed  to  secure 
every  avenue  to  the  room,  and  through  one  unguarded  avenue 
another  officer  entered  and  seized  the  property .& 

Li  Massachusetts,  the  necessity  for  an  actual  handling  of  the 
property  in  order  to  effect  an  attachment  is  not  recognized.  Thus, 
where  the  officer  went  with  a  writ  and  took  possession  of  the  de- 
fendant's store,  and  locked  it  up;  it  was  held  to  be  a  sufficient 

1  Odiome  r.  Colic  v.  2  New  Ilamp.  66 ;  Morse  v.  Hard,  17  Ibid.  246. 

2  Huntin-ton  v.  BlaUdell,  2  New  Hamp.  317. 

8  Dunklee  r.  Falcs,  5  New  Hamp.  527.  TT^ii;cfor« 

*  Lvon  r.  Roml.  12  Vermont.  2.33.  In  this  case  the  above^ited  case  of  Hollister  r. 
Goodale,  8  Conn.  332,  is  severely  condemned. 

6  Newton  r.  Adams,  4  Vermont,  437  ;  Slate  v.  Barker,  26  Ibid.  647. 


§  258  ATTACHMENT   OF   TF-RSOKAL   TROPFRTY.  [CflAP   X. 

attacliment  of  the  goods  in  the  store,  and  valid  against  a  subse- 
quent attachuicnt  or  mortgage  thereof.^ 

But  in  Califurnia,  where  a  sheriff  went,  a  few  minutes  after 
midnight,  to  a  closed  store,  and,  without  obtaining  admittance, 
stationed  Iiimsclf  at  tlic  front  door,  aiul  an  assistant  at  the  back 
door,  so  that  no  one  could  go  in  or  come  out,  but  did  not  declare 
tliat  he  levied  on  the  contents  of  the  store,  and  did  not  know  what 
the  contents  were  ;  it  was  held,  tliat  no  levy  was  effected,  as  against 
an  assignment  by  the  defendant  in  insolvency,  made  after  those 
acts  of  the  sheriff,  and  before  he  obtained  an  entrance  into  the 
store.  The  court  said :  "  It  is  too  plain  for  argument  that  there 
can  be  no  levy  wliere  the  officer  does  not  even  know  the  subject  of 
the  levy.  As  well  might  a  sheriff  stand  in  the  street  and  levy  on 
the  contents  of  a  banking  house,  as  to  stand  in  a  store  door  at 
midnight,  and  chiim  that  by  nun-ely  standing  tlicn',  and  j)reventing 
any  person  from  coming  into  the  store,  he  had  levied  on  tlie  con- 
tents, whatever  they  were,  of  tlio  store  ;  and  this  without  having 
any  knowledge  of  the  general  nature  of  the  stock,  much  less  of 
the  particular  description  or  value."* 

§  2i'>l.  In  all  such  cases,  however,  if  the  officer  have  not  the 
property  under  his  control,  or,  so  having,  he  abandon  it,  the  at- 
tachment is  lost.  Therefore,  where  an  officer  having  an  attach- 
ment, got  into  a  wagon  in  which  the  defendant  was  riding,  and 
to  which  a  horse  was  harnessed,  and  told  tlie  defendant  that  he 
attached  the  horse,  and  then  rode  down  street  with  the  defend- 
ant, without  exercising  any  other  act  of  possession,  and  left  the 
horse  with  the  defendant,  upon  his  jiromising  to  get  a  receipter 
for  it;  the  court  held,  that,  as  the  horse  had  not  been  under  the 
officer's  control  for  a  moment,  or  if  it  could  be  considered  that  he 
had  had  an  instantaneous  possession,  it  was  as  instantaneously 
abandoned,  there  was  no  attachment.^ 

§  258.  With  regard  to  heavy  and  unmanageable  articles,  there 
seems  to  be  no  necessity  for  an  actual  handling  to  constitute  an 
attachment.  Thus,  an  officer  went  with  an  attachment,  within 
view  of  a  quantity  of  hay  in  a  barn,  and  declared  in  the  presence 

1  Denny  v.  Warren,  16  Mass.  420;  Gordon  v.  Jenney,  Ibid.  46.5;  Shephard  v.  But- 
terficld,  4  Gushing',  425  ;  Naylor  v.  Dennic,  8  Pick.  198.' 

2  Taffts  1-.  Manlovc,  14  Galifornia,  47 
8  French  i\  Stanley,  21  Maine,  512. 

[184] 


CHAP.  X.]  ATTACHMENT   OF   PERSONAL   PROPERTY.  §  259 

of  witnesses,  that  he  attached  the  hay,  and  posted  up  a  notification 
to  that  effect  on  the  barn-door ;  and  it  was  held  to  be  a  valid  at- 
tachment,^    So,  where  an  officer  attached  a  parcel  of  hewn  stones, 
lying  scattered  on  the  ground,  by  going  among  and  upon  them, 
and  declaring  that  he  attached  them,  and  placed  them  in  charge 
of  the  plaintiff;  but  made  no  removal  of  them,  nor  gave  any  notice 
to  any  third  persons  of  the  attachment,  nor  took  any  other  mode 
of  giving  notoriety  to  the  act ;  it  was  held  to  be  a  valid  attachment, 
because  it  was  manifest  that  the  officer  did  not  intend  to  abandon 
the  attachment,  and  that  the  measures  he  took,  considering  the 
bulky  nature  and  the  situation  of  the  property,  were  sufficient.^ 
So,  where  an  officer  attaclied  a  quantity  of  iron  ore  lying  on  the 
surface  of  the  ground,  by  informing  the  clerk  and  workmen  of  the 
defendant  of  the  attachment,  but  did  not  remove  the  ore ;  and  in 
consequence  of  his  declaration  the  workmen  were  dismissed,  and 
the  defendant's  operations  ceased,  and  the  facts  became  generally 
known  and  talked  of ;  and  it  appeared  that  the  removal  of  the  ore 
would  have  been  attended  with  great  expense  and  serious  injury 
to  the  property ;  it  was  held,  that  the  attachment  was  valid ;  that 
where  the  removal  of  attached  property  would  result  m  great 
waste  and  expense,  it  may  be  dispensed  with ;  and  that  in  such 
case  tlie  c(>ntinued  presence  of  the  officer  with  the  property,  in 
person  or  by  agent,  is  not  necessary ;  it  being  sufficient  if  he  ex- 
ercise due  vigilance  to  prevent  its  going  out  of  his  control.^     The 
doctrine  thus  stated,  as  dispensing  with  the  actual  reduction  to 
possession  of  ponderous  articles,  was  sougbt,  but  unsuccessfully, 
to  be  applied  to  an  attachment  of  ripe  corn  and  potatoes  in  a  field, 
of  which  an  officer  returned  an  attachment,  though  he  had  only 
gone  into  the  field,  and  appointed  an  agent  to  keep  the  corn  and 
potatoes.     It  was  held,  that  this  was  no  attachment,  and  that  it 
was  the  officer's  duty  to  have  severed  the  produce  from  the  soil, 
and  reduced  it  to  his  possession.* 

§  259.  The  rule  requiring  tlie  officer  to  reduce  to  his  possession 
personal  property  attached  by  him,  does  not  extend  to  a  case  in 
which  an  attachment  is  authorized  of  that  which  in  its  nature  is 
incapable  of  being  taken  into  possession.    Such  is  the  case  of  stock 

1  Merrill  V.  Sawyer,  8  Pick.  .397. 

■^  Hcmmcnwav  i-.  Wheeler,  U  Pick.  408  ;  PoUey  v.  Lenox  Iron  Works,  4  Allen,  329. 

8  Mills  V.  Camp,  14  Conn   219  ;  Bicknell  v.  Trickey,  34  Maine,  273. 

*  Hoard  r.  Fairbanks,  5  Metcalf,  1 1 1.  n  om 


§  250  ATTACHMENT    OF   PERSONAL   PROPERTY.  [cilAP.  X. 

in  a  bank  or  other  corporation.  There,  it  is  suflicient  for  the  ofTi- 
cer  to  take  the  steps  required  by  the  law  under  which  he  acts,  and 
to  describe  the  property  as  so  many  shares  of  the  particular  stock 
owned  by  the  defendant,  and  a  sale  by  such  a  description  will  carry 
tho  title.^ 

1  Stamford  Bank  i'.  Ferris,  17  Conn.  259. 
[186] 


ClIAl'.  XI.]  OF   SIMULTANEOUS   ATTACHMENTS.  §  262 


CHAPTER    XI. 

OF   SIMULTANEOUS,  SUCCESSIVE,  CONFLICTING,  AND    FRAUDULENT 
ATTACHMENTS. 

§  2tj0.  A  COMMON  occurrence  in  the  use  of  the  remedy  by  at- 
tacliment  is,  for  a  number  of  writs,  in  favor  of  dilTerent  plaintiffs, 
to  be  placed,  at  the  same  time,  or  in  quick  succession,  in  the  hands 
of  olhcers,  against  the  same  defendant,  and  served  on  the  same 
proi>erty,  simultaneously,  or  at  short  successive  intervals.  As 
such  cases  usually  occur  where  the  defendant  is  in  failing  circum- 
stances, or  is  about  to  commit,  or  has  perpetrated  some  fraud,  and 
the  projicrty  levied  on  is  supposed  to  be  the  only  available  resource 
lor  the  satisfaction  of  his  creditors,  it  is  important  to  ascertain  the 
rules  which  are  to  decide  between  interests  which,  under  such 
circumstances,  are  almost  certain  to  come  in  conflict.  This  sub- 
ject is  of  no  importance  where,  as  in  some  States,  the  first  attach- 
ment liolds  tlie  property,  not  to  the  exclusion  of  all  subsequent 
ones,  Ijut  for  the  benefit  of  all  creditors  of  the  defendant  who 
come  in  and  prove  their  demands,  and  thereby  become  entitled  to 
share  with  the  first  attacher  the  avails  of  his  diligence;  but 
wherever,  as  in  the  large  majority  of  the  States,  the  writs  hold  in 
the  order  of  their  service,  its  importance  is  evident. 

§  i2i!l.  In  general,  there  is  no  doubt  that  the  law  admits  of  no 
fractions  of  a  day ;  but  this  rule  is  subject  to  exceptions,  when 
necessary  to  determine  priority  of  right.  The  case  of  several 
attachments  levied  on  the  same  property  on  the  same  day  is  one 
of  the  exceptions.  There,  it  is  held,  that  they  will  stand  accord- 
ing to  the  actual  time  of  service,  and  if  a  judgment  be  obtained 
by  a  junior  attacher  in  advance  of  a  senior,  it  will  not  destroy  the 
priority  of  lieu  acquired  by  the  latter.^ 

§  262.   The  rights  of  attaching  creditors,  who,  as  against  their 

1  Tufts  f.  Carradine,  3  Louisiana  Annual,  430.  In  Pennsylvania,  however,  it  is  held, 
that  anionj;  all  the  attachments  which  go  into  the  sheriff's  hands,  and  are  executed,  ou 
the  same  day,  there  is  no  preference.     Yelverton  v.  Burton,  26  Penn.  State,  351. 

[187] 


§  2G2  OF   SIMULTANTIOUS,  SUCCESSIVE,  CON'FLICTIXG,        [cHAP.  XI 

common  debtor,  have  equal  claims  to  the  satisfaction  of  theii 
debts,  must  depend  on  strict  law  ;  and  if  one  loses  a  priority  onco 
acquired,  by  any  want  of  regularity  or  legal  diligence  in  ids  pro- 
ceedings, it  is  a  case  where  no  equitable  principles  can  afford  him 
relief;  where  the  equities  are  equal;  and  where  the  right  must 
be  governed  by  the  rule  of  law.^  It  lias  been  held,  tlierefore, 
that,  as  against  subsequent  attaching  creditors,  the  rendition  of  a 
judgment  in  due  form  and  course  of  law,  and  the  issuing  of  an 
execution  on  that  judgment,  and  duly  charging  tlie  property 
therewith,  is  as  necessary  as  tiie  attaclnnent  itself,  to  entitle  the 
plaintiff  to  priority  of  satisfaction ;  and  that  any  departure  by 
liim  from  the  course  preserii)ed  by  law  for  establishing  his  right 
to  such  satisfaction  will  discharge  his  lien  under  the  attachment, 
and  sulject  the  whole  attached  property  to  the  claims  of  tho 
subsequent  attachers.  Hence  it  was  held  in  Vermont,  that  a 
confession  of  judgment  by  the  defendant,  anterior  to  the  time 
■when  the  action  would  have  been  regularly  triable,*  or  an  appear- 
ance and  trial,  resulting  in  a  judgment  for  the  plaintiff,  before  tho 
return  day  of  the  writ,^  was  a  dissolution  of  the  plaintiffs  lien 
under  his  attachment,  as  against  subsequent  attachments.  So, 
too,  where  there  were  several  successive  attachments,  and  tho 
first  attachcr,  having  a  claim  large  enough  to  absorb  all  tho 
property  attached,  i)y  agreement  with  the  defendant  took  all  the 
property  in  satisfaction  of  his  debt,  and  discontinued  his  suit ;  it 
was  held,  that,  as  against  the  subsequent  attachers,  who  perfected 
their  lien  by  judgment  and  execution,  he  acquired  no  title  to  the 
property.* 

It  will  be  remarked,  that,  in  all  these  instances,  there  was  held 
to  be  a  substantial  departure  from  the  legal  mode  prescribed  for 
enabling  a  party  to  obtain  the  benefit  of  his  attachment.  This 
would  probably  be  considered  as  a  different  matter  from  mere 
irregularities  ;  for  it  is  well  settled  that,  though  such  exist  in  the 
proceedings  of  one  attaching  creditor,  other  attaching  creditors 
cannot  make  themselves  parties  to  the  proceedings  for  the  purpose 
of  defeating  them  on  that  account.^ 

1  Suydam  v.  Huprgcford,  23  Pick.  465. 

2  Hall  V.  Walbridpe,  2  Aikens,  215. 

8  Murray  v.  Eldridj^c,  2  Vermont,  388. 

*  Brandon  Iron  Co.  v.  Gleason,  24  Vermont,  228;  Cole  v.  Wooster,  2  Conn.  203. 
6  Kincaid  v.  Ncali,  3  M'Cord,  201  ;  Camberford  v.  Hal],  Ibid.  .345  ;  McBride  v.  Floyd, 
2  Bailey,  209  ;  "Van  Arsdalc  v.  Kriim,  9  Missouri,  393 ;  Walker  v.  Roberts,  4  Richsu-d- 
[188] 


CHAP  XI.]        AND  FRAUDULENT  ATTACHMENTS.  §  263 

§  263.  N(nther  the  issue  of  an  attachment,^  nor  its  lodgement 
in  the  hands  of  an  officer,-  confers  any  rights  upon  the  plamtifif 
in  the  defendant's  property.  It  is  only  when  the  writ  is  served, 
that,  as  between  plaintiff  and  defendant,  and  generally  as  between 
different  plaintiffs,  its  lien  takes  effect.^  Hence,  when  several 
attachments  against  the  same  person  are  simultaneously  served 
on  the  same  property,  they  will  be  entitled  to  distribute  among 
them  the  proceeds  of  tlie  attached  property,  or  the  funds  in  the 
hands  of  garnishees.  This  distribution  is  not  in  proportion  to 
the  amount  claimed  under  each  attachment,  but  according  to  the 
number  of  the  writs,  eacli  being  entitled  to  an  aliquot  part ;  with 
this  qualification,  however,  that,  if  the  share  of  any  plaintiff  sliould 
be  more  than  sufficient  to  satisfy  his  demand,  the  surplus  must  be 
appropriated  to  any  other  of  the  demands  which  is  not  paid  in 
full  by  its  distributive  share.* 

Tbis  rule  was  applied  in  Massachusetts,  not  only  to  the  case  of 
simultaneous  attachments  by  different  officers,^  but  where  the  writs 
were  in  the  Imnds  of  tlie  same  officer,  and  were  delivered  to  him 
at  different  times,  but  served  together.^.  In  Kentucky,  however, 
it  was  determined,  that,  though  in  the  case  of  distmct  officers,  the 
first  levy  gives  tlie  prior  lien,  yet  where  several  attachments  against 
the  same  fund  come,  in  succession,  to  the  hands  of  the  same  officer 
or  his  deputies,  it  is  the  duty  of  the  officer  to  execute  them  in  the 
order  in  wliich  they  were  received.  And  although  when  the 
process  comes  to  tlic  hands  of  different  deputies,  this  order  of 

son.  561  ;   Ball  v.  Clafflin.  5  Pick.  30.3;   In  re  Griswold,  13  Barbour,  412;  Bank  of 
Au"ii>ta  V.  Jau.loii.  'J  Louisiana  Annual,  8.  „      •      - 

1  Moars  r.  Winsiow,  1  Sm-.-.k-.  &  Marshall,  Ch'y  R.  449 ;  WiUiamson  v.  Bowie,  6 
Munfurd.  176  ;  Wallace  r.  Forrest,  2  Harris  &.  McIIenry,  261. 

2  CrowninshifM  v.  StrolK-l,  2  Brevar.l,  80 ;  Roljcrt-son  v.  Forrest,  Ibid.  466  ;  Bcthune 
p.  Gibson,  IbM.  501  ;  Crocker  r.  Rad.  liffe,  3  Ibid.  23. 

«  Gates  r.  Bu.hnell,  9  Conn.  5.30;  Sewell  r.  Savage,  I  B.  Monroe,  260;  >utter  v. 
Conn.t  3  Ibid.  190  ;  Fitch  r.  Waitc,  5  Conn.  117  ;  Cro«-ninshicld  v.  StroM,  2  Brevard, 
80-  Rolvrtson  r.  Forrest,  Ibid.  466;  Bcthune  r.  Gibson,  Ibid.  501;  Crocker  r.Rad- 
cliffe  3  Ibid.  23;  I'ond  r.  Griffin,  1  Alabama,  678;  McCobb  v.  Tyler,  2  Cranch^  C.  L. 
199  :'  Gri-sley  v.  I>ove,  Ibid.  413  ;  Burkhardt  v.  xMcCkllan,  15  Abbott  Pract.  R.  243  ; 
Taffts  V.  Manlove,  14  California,  47.  „     ,         j      tt 

♦  Shove  r.  Dow  13  Mass.  529;  Si;:oumcv  r.  Eaton,  14  Pick.  414  ;  Rockwood  ^.  Var- 
num  17  Ibid.  289  ;  Durant  i:  Johnson,  19  Ibid.  544  ;  Davis  v.  Davis,  2  Cushing,  111  ; 
Thu^ton  r.  Huntington,  17  New  Hainp.  438  ;  Campbell  r.  Ruger,  1  Cowen  215 ;  Nut- 
ter c.  Connet,  3  B.  Monroe,  199.  This  rule,  however,  does  not  obtain  in  >orth  Caro- 
lina an.l  Tennessee,  where  the  distribution  is  made  pro  rata.  HiU  r.  Child,  3  Devereux, 
263  ;  FrcH-nian  r.  Grist,  1  Devereux  &  Battle,  217  ;  Porter  v.  Earthman,  4  Yerger,  3o8 ; 
Love  r.  Harper,  4  Humphreys,  113.  ,-  t,-  ,    oon 

6  Shove  V.  Dow,  13  Mass.  529.  «  Rockwood  v.  Vamura,  1'  P'ck_289. 

[189] 


§  2Go  a  OP   SIMULTANEOUS,  SUCCESSIVE,  CONFLICTING,        [cHAP.  XI. 

service  may,  without  fault,  liappcn  to  be  reversed,  the  court, 
liaviiig  the  fund  in  its  possession  under  all  the  attachments,  should 
distribute  it  according  to  the  rule  which  should  have  governed  the 
execution  of  the  process.^ 

§  2G4.  Where  diflTerent  writs  are  in  the  hands  of  the  samo 
officer,  there  need  be  no  difficulty  in  ascertaining  whether  their 
ser\'^ice  was  simultaneous  ;  but  when  diffi3rent  officers  are  em- 
ployed, each  intent  on  ol)taining  priority,  questions  of  difficulty 
may  occur.  A  singular  case  of  this  description  is  reported  in 
Massachusetts,  where  two  officers  held  attachments  agiinst  the 
same  dcf(Mulant.  One  returntMl  his  writ  served  "  at  one  minute 
past  12  o'clock,  a.  m.,"  the  other  that  he  served  his  writ  "  immedi- 
ately after  midnight "  on  the  same  day.  The  court  held,  that 
each  of  them  made  the  attachment  as  soon  as  it  could  be  dono 
after  twelve  o'clock  at  night,  and  that  it  was  impossible  to  say  that 
either  had  the  priority .^ 

§205.  Where  several  ^writs  against  the  same  defendant  were 
served  in  the  course  of  the  same  day,  and  the  returns  on  all, 
except  one,  stated  the  time  of  the  day  when  the  service  was  made, 
and  that  one  stated  only  a  service  on  that  day ;  it  was  held,  that 
it  was  neither  matter  of  legal  presumption,  nor  construction,  that 
the  latter  writ  was  served  at  the  same  time  with  any  of  the  others. 
But  parol  evidence  was  admitted  to  show  at  what  time  of  the 
day  specified  in  the  return  the  service  was  in  fiict  made  ;  such 
evidence  being  regarded  as  entirely  consistent  with  the  return.^ 

In  a  similar  case  where  an  officer  returned  an  attachment  as 
made  at  12  o'clock,  noon,  on  a  certain  day,  it  was  considered  as 
prior  in  point  of  time  to  another  attachment  returned  as  made  on 
the  same  day,  indefinitely,  without  specifying  any  particular  hour. 
And  it  was  held  in  that  case,  that  no  amendment  of  the  latter  re- 
turn was  admissible,  which  would  destroy  or  lessen  the  rights  of 
third  persons  previously  acquired.* 

§  265  a.  Where  several  writs  are  executed  about  the  same  time, 

1  Kcnnon  »;.  Ficklin,  6  B.  Monroe,  414  ;  Clay  r.  Scott,  7  Ibid.  554  ;  Callahan  v.  Hal- 
lowell,  2  Bay,  8.     See  Thurston  v.  Huntington,  17  New  Hamp.  438. 

2  Shove  V.  Dow,  13  Mass.  529. 

^  Brainard  o.  Bushnell,  11  Conn.  16. 

*  Fairfield  v.  Paine,  23  Maine,  498;  Taylor  v.  Emery,  16  New  Hamp.  359. 
[190] 


CHAP.  XI.]  AND   FRAUDULENT   ATTACHilENTS.  §  267 

and  so  near  together  that  but  for  the  terms  of  the  returns  thereon 
they  would  be  considered  ae.  liaving  been  simultaneously  made,  it 
is  held,  in  New  Uampshire,  that  the  officer  may  indicate  the  order 
in  which  he  served  them,  by  returning  his  attachment  under  one 
as  subject  to  an  attachment  under  another ;  and  that  if  he  so  re- 
turned them  in  the  order  in  which  he  received  them,  he  gave  them 
their  rightful  precedence.^ 

§  26G.  When  different  officers  make  attachments  so  nearly  at 
the  same  time  that  it  is  difficult  to  determine  the  question  of 
priority  between  them,  they  may,  it  seems,  settle  the  dispute  by  a 
division  of  the  property,  which  will  be  regarded  as  binding  on 
them,  and  as  precluding  either  from  subsequently  raising  the 
question  of  priority.  And  if,  in  such  case,  one  sell  the  whole 
of  the  property  and  apply  the  proceeds  to  the  satisfaction  of  the 
execution  held  by  him,  the  other  will  be  entitled  to  maintain  trover 
against  him  for  his  portion,  and  in  order  thereto  need  not  prove 
that,  in  fact,  his  was  the  first  attachment.^ 

§  207.  Neither  the  actual  custody  nor  the  exclusive  control  of 
the  same  articles  of  personal  property  can,  at  the  same  time,  be  in 
two  distinct  persons ;  and  therefore,  as  possession  of  goods  by  an 
officer  is  an  indispensable  requisite  to  a  valid  attachment  of  them, 
it  follows  that  when  an  officer  has  levied  an  attachment  on  goods, 
and  has  them  in  his  custody,  no  other  officer  can  seize  them  under 
another  writ ;  fur  in  order  to  attach,  he  must  lawfully  take  pos- 
session of  them  ;  but  this  he  cannot  do,  since  the  first  attaching 
officer  has,  by  his  prior  attachment,  a  special  property  in  them, 
and  they  are  in  the  custody  of  the  law,  and  it  would  introduce 
confusion  to  admit  of  several  officers  contending  for  the  possession 
of  attached  goods.^  And  it  matters  not  that  the  first  attaching 
officer  had  levied  upon  more  than  was  sufficient  to  satisfy  the  writ 
under  which  he  acted."*  The  same  rule  prevails  where  the  prop- 
erty is  not  in  the  actual  custody  of  the  first  officer,  but  in  the 

1  Thurston  c.  Huntin;:ton,  17  New  Hamp  438. 

2  Lyiniin  V.  Dow,  25  Wrmont,  405. 

8  Watson  V.  Todd,  5  Mass.  271  ;  Vinton  v.  Bradford,  1.3  Ibid.  114;  Burlinfi^ame  v. 
Bell,  16  Ibid.  318  ;  Udiornc  v.  CoUey,  2  New  Hamp.  66  ;  Moore  v.  Graves,  3  Ibid.  408 ; 
Strout  V.  Bradl)ury,  5  Maine,  313 ;  Burroughs  v.  Wright,  16  Vermont,  619;  Lathrop 
.;.  Blake,  3  Foster,  46  ;  Walker  v.  Foxeroft,  2  Maine,  270  ;  Oldham  v.  Scrivener,  3  B. 
Monroe,  579;  Hobinson  r.  Ensign,  6  Gray,  300;  Harbison  v.  McCartney,  1  Grant,  172, 

*  Vintgn  v.  Bradford,  13  Mas.s.  114. 

[191] 


§  270  OF   SIMULTANEOUS,  SUCCESSIVE,  CONFLICTING,        [clIAP.  XL 

haiids  of  a  receiptor,  to  whom  he  has  intrusted  it.  The  possession 
of  tli(!  receiptor  being  that  of  the  ofilcer,  cannot  he  viohited  l>y 
taking  the  goods  from  his  custody  under  another  attachment.^ 

§  208.  If  an  officer  attach  property,  and  it  is  sul>sei]ucntly  taken 
from  his  possession  by  another  officer,  under  another  attachment 
against  the  same  defendant,  and  tlie  property  is  sold  and  its  avails 
applied  by  the  second  officer  uj>on  the  execution  obtained  in  the 
second  suit,  and  the  first  officer  sue  the  second  for  the  trespass, 
his  right  to  recover  anything  more  than  nominal  damages  will 
depend  on  his  liability  for  the  property  to  the  plaintilV  in  whose 
favor  he  attacliecl  it ;  and  if  that  liability  has  been  lost  by  the  fail- 
ure of  the  plaintiir  to  perfect  the  lien  of  his  atUichment,  there  cau 
be  no  recovery  against  the  second  attaching  oflTicer  for  anything 
more  than  nominal  damages.  In  such  case  the  first  officer  cannot 
recover  upon  the  ground  of  any  liability  on  his  part  to  the  defend- 
ant, since  the  act  of  the  second  ofilcer  was  justifiable,  so  far  as  the 
defendant  is  concerned,  and  the  first  ofilcer  is  not  liable  over  to 
him  for  the  property.^ 

§  2G9.  If  it  be  desired  to  lay  an  attachment  upon  property 
already  attached,  and  in  an  ofilcer's  custody,  the  writ  sliould  be 
delivered  to,  and  executed  by,  him ;  when  it  will  be  available  to 
hold  the  surplus,  after  satisfying  the  previous  attachment,  or  the 
whole,  if  that  attachment  should  be  dissolved.  In  such  case  no 
overt  act  on  the  part  of  the  officer  is  necessary  to  efTect  the  second 
levy,  but  a  return  of  it  on  the  writ  will  be  sufiicient.*'^  So,  where 
the  property  is  in  the  hands  of  a  bailee,  the  oflTicer  who  placed  it 
there  may  make  another  attachment,  without  the  necessity  of  an 
actual  seizure,  by  making  return  thereof,  and  giving  notice  to  the 
bailee.* 

§  270.  These  rules  refer  to  seizures  of  goods,  and  not  to  cases 
where  property  is  attached  by  one  officer,  by  garnishment  of  the 
individual  in  whose  possession  it  may  be,  and  afterwards  by  another 

1  Thompson  v.  Marsh,  14  Mass.  269. 

2  Goodrich  v.  Chureh,  20  Vermont,  187. 

8  Turner  v.  Austin,  16  Mass.  181;  Tomlinson  v.  Collins,  20  Conn.  364;  Rogers  v. 
rairficld,  36  Vermont,  641. 

*  Knap  V.  Sprague,  9  Mass.  2.58;  "Whittier  v.  Smith,  11  Ibid.  211  ;  Odiome  v.  Colley, 
2  New  Hamp.  66 ;  Whitney  i".  Fanvell,  10  Ibid.  9 ;  Tomlinson  v.  Collins,  20  Conn.  364. 
[192] 


CHAl*.  XI.]  AND   FRAUDULENT   ATTACHMENTS. 


§272 


officer,  by  actual  seizure  and  removal  thereof  from  the  garnishee's 
possession.  This,  though  a  proceeding  not  by  any  means  to  be 
approved,  and,  where  the  writs  issue  from  different  jurisdictions, 
wholly  inadmissible,  yet  may,  it  seems,  be  done,  where  the  two 
writs  proceed  from  the  same  jurisdiction.  The  officer  making  the 
seizure  of  the  goods,  will  hold  thorn  subject  to  the  prior  lien  of 
the  garnishment.  He  must  keep  them  until  the  result  of  the 
garnisliment  is  ascertained ;  wlien,  if  the  garnisliee  be  charged  in 
respect  of  them,  tlie  officer  will  be  bound  to  restore  them  to  him 
and  suffer  them  to  be  sold ;  and  if  he  fail  to  do  so  he  will  be  liable 
to  the  garnishee,^  or  to  the  plaintiff  m  the  garnishment.^ 

§  271.  If  an  officer  suffer  his  possession  of  attached  property  to 
be  lost,  it  may  be  attaclied  by  another  officer,  though  the  latter 
may  be  aware  of  the  former  attachment  having  been  made,  if  his 
knowledge  extend  not  beyond  that  fact.^  For  it  does  not  follow, 
that,  because  he  knows  an  attachment  was  at  one  time  made,  he 
knows  that  it  still  exists;  on  the  contrary,  lie  may  well  infer,  from 
finding  the  i)roperty  no  longer  in  the  possession  of  the  officer  who 
first  attached  it,  that  the  prior  attachment  had  been  discharo-ed. 
But  if  he  know  tlmt  there  is  a  sul)sisting  attachment,  —  although 
the  defendant  migiit,  at  the  time,  by  tlje  permission  of  the  bailee, 
to  whom  the  pro})erty  had  been  intrusted,  be  in  possession  of  it, — 
lie  cannot  acquire  a  lien  by  attaching  it.*  After  he  has  made  a 
levy,  however,  notice  to  him  that  a  i>rior  attachment  exists  will 
not  affect  the  validity  of  the  levy.^ 

§  272.  The  existence  of  the  proceeding  by  attachment  could 
hardly  fail  to  give  rise  to  fraudulent  attempts  to  obtain  preference, 
where  the  property  of  a  debtor  is  insufficient  to  satisfy  all  the  at- 
tacliments  issued  against  him.  When  it  transpires  that  there  are 
circumstances  justifying  resort  to  this  remedy,  the  creditors  of  an 
individual  usually  press  forward  eagerly  in  the  race  for  precedence, 
sometimes  to  the  neglect  of  important  forms  in  their  proceedings, 
and  sometimes  without  due  regard  to  tlie  rights  of  others.  On 
such,  occasions,   too,   notwithstanding   the    safeguards    generally 

1  Burlinpame  v.  Bell,  16  Mass.  318;  Swett  i'.  Brown,  5  Pick.  178. 

^  Rockwood  i».  Varniim,  17  Pick.  289. 

'  Chfa<ll>ourne  v.  Sumner,  16  New  Ilamp.  129. 

*  Barley  v.  White,  4  Pick.  39.5 ;  Young  v.  Walker,  12  New  Hamp.  502. 

'  Bruce  1-.  lloldcn,  21  Pick.  187. 

13  [193] 


§  274  OF   SIMULTANEOUS,  SUCCESSIVE,  CONFLICTING,        [cHAI'.  XL 

thrown  around  the  use  of  this  process,  and  in  violation  of  tiie 
sanctity  of  the  preliminary  oath,  it  has  hcen  found  that  nn.Mi,  in 
collusion  with  the  debtor,  or  counting  on  his  absence  for  impunity, 
have  attempted  wrongfully  to  defeat  the  claims  of  honest  creditors, 
hy  obtaining  priority  of  attachment,  on  false  demands.  There  is, 
therefore,  a  necessity  —  apparent  to  the  most  superficial  observa- 
tion —  for  some  means  by  which  all  such  attempts  to  overreach 
and  defraud,  through  the  instrumentality  of  legal  process,  may  be 
summarily  met  and  defeated.  Ilence  provision  has  been  made  in 
the  statutes  of  some  States  for  this  exigency,  and  where  such  is 
not  tlie  case  the  courts  have  broken  the  fetters  of  artificial  forms 
and  rules,  and  attacked  the  evil  with  commendable  sjiirit  and 
effect. 

§  273.  As  before  remarked,^  whatever  irregularities  may  exist 
in  the  proceedings  of  an  attaching  creditor,  it  is  a  well-settled  rule 
that  other  attaching  creditors  cannot  make  themselves  parties 
to  those  proceedings,  for  the  purpose  of  defeating  them  on  that 
account.^  But  where  an  attachment  is  based  on  a  fraiululent 
demai.J,  or  one  which  has  in  fact  no  existence,  it  is  otherwise,  as 
will  api)ear  from  a  review  of  the  action  of  courts  of  a  high  order 
of  learnuig  and  ability. 

§  274.  In  North  Carolina  it  was  held,  in  the  case  of  several  at- 
tachments against  the  same  defendant,  le\icd  on  the  same  prop- 
erty, that  a  junior  attacher  could  not  impeach  a  judgment  obtained 
by  a  senior  attacher,  on  the  ground  that  when  the  attachment  of 
the  latter  was  obtained,  tlie  defendant's  debt  to  him  was  not  dne;' 
and  in  Iowa,  that  a  junior  attacher  could  not  intervene  in  a  prior 
attachment  suit,  to  show  that  it  was  prosecuted  by  collusion  be- 
tween the  parties  thereto,  for  the  purpose  of  hindering,  delaying, 
and  defrauding  the  defendant's  creditors  ;  but  that  relief  in  such 
case  could  only  be  administered  by  a  court  of  equity.^  But  these 
decisions  are  inconsistent  with  the  general  current  of  decision 
elsewhere,  as  we  shall  now  proceed  to  show. 

1  Ante,  §  262. 

2  Kinciiid  V.  Neall,  3  M'Cord,  201  ;  Cambcrford  v.  Hall,  Il)id.  345  ;  M'Bridc  i-.Tloyd, 
2  Bailey,  209  ;  "Van  Avsdale  v.  Krum,  9  Missouri,  397  ;  Walker  r.  Roberts,  4  Richardson, 
561  ;  Ball  v.  Claflin,  5  Pick.  303  ;  In  re  Griswold,  13  Barbour,  412  ;  Bank  of  Augusta  v. 
Jaudon,  9  Louisiana  Annual,  8;  Fridenburg  ».  Pierson,  18  California,  152;  Ward  ». 
Howard,  12  Ohio  State,  158. 

8  Harrison  v.  Pender,  Busbec,  78.  *  Whipple  v.  Cass,  8  Iowa,  126. 

[194] 


CHAP.  XI.]  AND    FRAUDULENT    ATTACHMENTS.  §  275 

§  275.  In  New  Hampshire,  so  far  as  we  have  been  enabled  to 
discover,  there  is  no  statute  authorizing  an  attaching  creditor  to 
impeach  the  good  faith  of  previous  attachments ;  but  a  practice 
prevails  there,  which  effectually  opens  the  door  for  such  salutary- 
investigations  ;  as  is  exhilnted  by  the  following  case.  One  sued 
out  an  attachment,  and  caused  it  to  be  levied.  Afterwards,  credit- 
ors of  the  same  defendant,  who  had  subsequently  caused  the  same 
property  to  be  attached,  suggested  to  the  court,  that  the  suit  of 
the  prior  attachcr  was  prosecuted  collusively  between  him  and 
the  defendant,  for  the  purpose  of  defrauding  the  creditors  of  the 
latter,  and  that  there  was,  in  faot,  nothing  due  from  the  defendant 
to  the  plaintiff.  Thereupon,  —  the  creditors  making  the  sugges- 
tion, having  given  security  to  the  plaintiff  to  pay  all  such  costs 
as  the  court  should  award  on  account  of  their  interference  in  the 
suit,  —  the  court  ordered  that  the  plaintiff  should  make  his  elec- 
tion to  dissolve  his  attachment,  or  consent  to  try,  in  an  issue 
between  him  and  the  creditors,  the  question  whether  his  suit  and 
attachment  were  collusive.  The  plaintiff  elected  the  latter,  and 
an  isstie  was  formed  for  the  purpose,  between  the  plaintiff  and  the 
creditors,  and  tried  by  a  jury,  who  found  that  the  suit  was  prose- 
cuted collusively,  for  the  purpose  of  defrauding  creditors.  The 
court  then  ordered  all  further  proceedings  to  be  stayed  ;  from 
which  order  the  plaintiff  appealed  to  the  Superior  Court.  That 
court,  in  sustaining  the  appeal,  differed  from  the  court  below  only 
as  to  the  j/uinner  of  arriving  at  the  result;  and  held,  that  if  the 
creditors  should  give  security  to  pay  all  the  costs  which  the  plain- 
tiff might  recover,  they  would  be  permitted  to  defend  in  the  name 
of  the  defendant}  Afterwards  the  same  court  referred  to  this  as  a 
very  common  practice,  and  as  in  general  the  only  mode  in  which 
a  fraudulent  attachment  could  be  defeated  ;2  and  in  a  subsequent 
case  held  it  to  be  available,  as  well  in  cases  of  garnishment,  as  in 
those  of  levy  on  specific  property.^  It  was  also  held  by  that  court, 
that  a  subsequent  attachcr  might  move  to  dismiss  a  prior  attach- 
ment, on  the  ground  that  there  was  no  such  person  as  the  plaintiff 
therein.* 

In  South  Carolina,  by  the  proceeding  in  attachment,  the  funds 

1  Buckman  v.  Buckraan,  4  New  Hamp.  319. 

2  Wubster  r.  Harper,  7  New  Hamp.  594 ;  Pike  v.  Pike,  4  Foster,  .384. 

»  Blaisdell  v.  Lad<l,  14  New  Ilarap.  129.     See  Harding  v.  Harding,  2.5  Vermont,  487, 
for  the  jiracticc  in  such  cases,  as  regulated  hy  statute  in  Vermont. 
*  Kimball  v.  Wellington,  20  New  Hamp.  439. 

[195] 


§  275  OF   SIMULTANEOUS,  SUCCESSIVE,  CONFUCTIXG,        [CHAP.  XL 

of  tho  abseut  debtor  arc  brought  into  court,  and  distributed  among 
the  several  attaching  creditors  ;  and  a  judgment  in  attachmcni 
serves  no  other  purpose  than  to  ascertain  the  amount  ot"  the  jjlain- 
tiflf's  claim  on  the  attached  property,  by  establishing  his  demand 
against  the  absent  debtor ;  and  no  execution  can  be  issued  on  tho 
judgment.  When  the  attached  fund  is  distributed,  the  judgment 
is  funrtus  officio^  unless  the  defendant  shall  have  entered  sjR'cial 
bail,  or,  under  the  Act  of  1843,  executed  a  warrant  of  attorney 
and  been  admitted  to  defend  the  action,  on  the  conditions  j)rc- 
scribed  by  the  Act.^  There  it  is  settled,  that  in  making  the  dis- 
tribution of  tho  moneys  arising  from  the  attachments,  the  court 
can  and  should  incpiire  into  the  several  causes  of  action,  and  may 
inspect  its  judgments  to  prevent  fraud  and  injustice.  In  elfecting 
this,  the  consent  or  opj)osition  of  the  parties  to  the  judgment  is 
disregarded,  for  they  may  combine  to  efTect  the  fraud.  The  accjui- 
escence  of  the  defendant  in  the  plaintiff's  illegal  proceedings, 
affords  no  pnjtection  against  an  in(juiry  into  the  judgment,  when 
that  is  necessary  for  the  protection  of  the  rights  of  other  creditors. 
Tliorefore,  wliere  an  attachment  aj)i)ears  to  have  issued  on  a  debt 
not  due,  it  will  be  set  aside  in  favor  of  a  junior  attachment  upon 
a  debt  that  was  due,-  And  tho  same  position  was  sustained  in 
California,^  and  in  Mississippi.* 

The  Court  of  Appeals  of  Virginia  have  taken  the  same  salutary 
course,  and  held,  that  a  junior  attaching  creditor  may  come  in  and 
defend  against  a  senior  attachment,  by  showing  that  the  debt  for 
which  the  senior  attachment  was  taken  out  had  be(.'n  paid.'^ 

In  Georgia,  this  subject  received  a  full  examination,  and  it  was 
held,  upon  general  principles,  and  without  any  aid  from  statutory 
provisions,  that  a  judgment  in  an  attachment  suit  may  be  set  aside, 
in  a  court  of  law,  upon  an  issue  suggesting  fraud  and  want  of 

1  Wiilkcr  V.  Rol)crts,  4  Rkliarilson,  5G1. 

2  Wiilkcr  V.  Roberts,  4  Riihardson,  561  ;  Ralph  v.  Nolan,  1  Rice's  Digest  of  R.  C. 
Reports,  77.  The  Supreme  Court  of  Connecticut,  however,  in  a  case  which  came 
before  it  between  conflicting  attachin;j  creditors,  where  the  claim  of  one  was  resisted  by 
the  ofhers,  because  it  embraced,  besides  a  debt  actually  due,  an  amount  intentled  to 
cover  and  secure  a  liability  which  the  plaintiff  was  under  as  an  indorser  for  the  accom- 
modation of  the  defendant,  decided  that,  in  the  absence  of  fraud,  such  a  combination 
of  claims  did  not  make  the  attachment  void,  and  that  the  attachment  should  be  sus- 
tained as  to  the  debt  really  due,  but  not  as  to  the  rest.     Ayres  i-.  Hustcd,  15  Conn.  504. 

8  Patrick  v.  Montader,  13  California,  434;  Davis  v.  Eppinger,  18  Ibid.  378 
*  Henderson  v.  Thornton,  37  Mississippi,  448. 
s  M'Clunv  V-  Jackson,  6  Grattan,  96. 
[196] 


CHAP.  XT.]        AND  FRAUDULENT  ATTACHMENTS.  §  275 

consideration  in  it,  tendered  by  a  junior  attaching  creditor  of  the 
common  defendant.^ 

1  Smith  V.  Gcttinj,'cr,  3  Georgia,  140.  The  case  arose  upon  a  motion  by  the  junior 
judjrnient  creditor  to  set  aside  the  senior  judgment,  for  alleged  want  of  consideration 
or  cause  of  action.  The  whole  facts  are  best  shown  in  the  opinion  of  the  court,  de- 
livered by  NisHKT,  J. 

"  Upon  a  rule  against  the  sheriff  for  the  distribution  of  money  raised  by  attachment, 
the  plaintiff  in  error,  holding  an  attachment  lien,  junior  to  that  of  the  defendants, 
sought  to  set  aside  their  lieu.  The  attachment  claim  of  both  parties  has  been  reduced 
to  judgment.  For  the  purpose  of  vacating  the  judgment  of  the  defendants,  and  there- 
by defeating  their  older  lien,  the  plaintiff  in  error  tendered  to  them  in  the  court  below 
the  following  issues  :  — 

"  1.  That  G.  &  I?,  (the  defendants  in  error)  have  no  judgment  against  II.  (the  defend- 
ant in  attachment),  good  and  sutlicient  in  law  ;  nor  did  G.  &  B.  have  at  the  time  of  su- 
ing out  their  attachment,  any  cause  of  action  against  said  II.  as  alleged. 

"  2.  That  said  judgment  in  favor  of  said  G.  &  B.,  had  upon  said  attachment,  is,  and 
was,  without  aderjuate  consideration,  and  therefore  void  as  to  said  S.  (the  plaintiff  in 
error). 

"  3.  That  the  attachment  in  favor  of  G.  &  B.  was  sued  out  on  a  note  made  by  one 
M.,  and  not  by  the  defendant  II.,  and  that  saiil  judgment  on  said  attachment  was  had 
and  founded  on  said  note  made  by  said  M.,  and  that  no  other  evidence  besides  said  note 
was  j)roduced  to  the  jury  who  found  said  verdict  in  favor  of  G.  &  B. ;  and  that  there- 
fore said  judgment  and  attachment  are  of  none  effect  as  against  said  S 

"  The  defendants  in  error  demurred  to  these  issues,  and  the  court  sustained  the  de- 
murrer ;  to  which  decision  the  plaintiff  in  error  excepts,  and  upon  it  assigns  error. 
The  questions  made  by  the  record  apj)ear  to  be  these,  to  wit:  'is  it  compf  tent  for  a  plain- 
tiff in  lUtmhmiid,  holiliiui  a  judiiment  and  an  atlac/iment  lien  youwjer  than  the  jtuli/meiit  and 
atlitrhmmt  lien  of  anothir  plaintiff  in  attachment,  a;/ainst  thi'  same  dtfindant,  to  set  aside  the 
old'T  lif-n  and  judiiment,  ujion  the  (/round  of  want  of  consideration  for  that  judffment,  or  upon 
the  (jround  of  fraud  in  tJte  judyment  ;  and  if  it  is,  can  it  be  done  by  motion,  and  issue  tendered 
at  law  f ' 

"  The  general  rule  as  to  the  effect  of  judgments  is,  that  they  are  conclusive  upon 
parties  and  j.rivies.  Parties  are  all  such  persons  as  were  directly  interested  in  the  sub- 
ject-matter, had  a  right  to  make  defence,  to  adduce  testimony,  to  cross-examine  wit- 
nesses, to  control  the  proceedings,  and  to  apf)cal  from  the  judgment.  Privies  are  all 
persons  who  arc  represented  by  the  parties  and  claim  under  them,  all  who  are  in  privity 
with  the  parties;  the  term  privity  denoting  natural  or  successive  relationship  to  the 
same  rights  of  i)rorK'rty.  All  persons  not  parties  or  privies  are  regarded  as  strangers. 
Stran-ers  are  not  concluded  by  a  judgment.     Brown  v.  Chancy,  I  Georgia,  410. 

"  Without  going  further  into  the  general  doctrines  upon  this  subject,  we  i)rocced  to 
say,  that  the  j>laintiff  in  error  was  not  a  party,  nor  a  privy,  to  the  judgment  or  attach- 
ment rendered  in  favor  of  G.  and  B.  against  II.  He  had  no  power,  in  his  own  right, 
to  make  a  defence  against  it,  to  adduce  testimony,  to  examine  witnesses,  to  control  the 
proceedings,  or  u>  enter  an  appeal. 

"  The  plaintiff  in  error  being  a  stranger  then  to  this  judgment,  it  is  scarcely  necessary 
to  adduce  authorities  to  demonstrate  his  right  to  set  it  aside,  if  prejudicial  to  his  in- 
terest, for  fraud.  Nor  is  it  any  the  more  questionable,  that  he  may  set  it  aside  as  being 
wholh-  u-i'lhuut  consideration.  But  there  are  some  authorities  which  relate  more  par- 
ticularly to  attachments,  which  have  a  direct  relevancy  to  this  case.  [The  court  then 
review  "the  cases  on  this  subject  in  Massachusetts  and  Maine,  and  proceed.] 

"  These  princii)les  and  these  authorities  establish  that  this  attachment  may  be  va^ 
catcd,  and  also  the  judgment  which  is  founded  on  it,  for  fraud— for  anything  that 
amounts  to  a  fraud  upon  the  rights  of  other  creditors,  whether  the  defendant  be  a  party 
to  the  fraud  or  not.     It  was  sought  to  be  done  in  this  case  by  an  issue  at  law,  before  a 

iur\-.    Can  it  be  so  done  ?  is  the  remaining  injury.     That  it  may  be  done  by  a  proce/;d- 

[197] 


§  275  OF   SIMULTANEOUS,  SUCCESSIVE,  CONTLIc  flXG,        [CIIAP.  XI. 

Ill  New  York  the  following  case  is  reported.  A.  issued  an 
attachment,  and  caused  it  to  he  levied  on  property  of  B.,  owned 
hy  him  and  a  partner,  not  a  defendant  in  that  action,  constituting 
the  firm  of  B.  &  Co.  Thereupon  B.  requested  D.,  a  creditor  of 
tlic  firm,  to  accept  a  confession  of  judgment  from  himself  and 
copartner,  and  levy  on  the  attached  property,  thus  gaining  a  j»rior 
right  over  A.  Tliis  judgment  was  set  aside  hy  the  conrt,  as  hciiig 
intended  to  defraud  creditors.  Thereupon  D.  issued  an  attach- 
ment on  the  partnersliip  deht,  and  levied  it  on  the  property  aln-ady 
attached  ;  having  done  which,  he  took  no  further  step  in  the  action 
for  more  than  four  months  ;  thus  leaving  his  attachment  dormant, 
and  apparently  to  he  used  only  against  other  creditors.  After 
the  levy  of  D.'s  attachment,  he  went  on  selling  goods  to  B.  &  Co., 
and  reipiired  and  obtained  security  on  those  sales.  These  facts, 
taken  in  connection  with  the  design  of  the  j)reviuus  confession  of 
judgment,  were  held  sufficient  to  justify  the  inference  that  D.'s 
attachment  was  levied,  not  to  secure  the  debt  due  lum,  but  to 
hinder  and  delay  the  collection  of  A.'s  demand,  and  that  D.'s 
attachment  would  be  droj)pcd  if  A.'s  claim  were  out  of  the  way ; 
and  the  court,  acting  on  this  inference,  on  motion  vacated  D.'s 
attachment.^ 

In  Michigan,  where  a  plaintiff  took  judgment  for  the  demand 
upon  wliieh  his  attachment  was  obtained,  and  also  for  another 
demand  which  ])ecame  due  after  his  suit  was  instituted  ;  it  was 
held,  that  his  judgment  was  fraudulent  as  against,  and  was  post- 
poned to  the  claim  of,  a  subsequent  attaching  creditor.^ 

lu  Ohio,  the  right  of  a  subsequent  attacher  to  object  to  a  prior 

ing  in  equity,  by  a  creditor  whose  debt  is  not  reduced  to  judfjment,  even,  I  presume 
there  is  no  doubt.  It  may  be  conceded,  for  it  hjis  been  so  ruled,  particularly  in  South 
Carolina,  that  a  creditor  whose  debt  is  not  reduced  to  judj^ment,  cannot  upon  motion, 
set  aside  a  judjrment  in  attachment,  for  irrej;ularity.  In  this  ca.^c  the  debt  of  the  ob- 
jecting creditor  is  in  jud;;nicnt;  lie  also  has  a  lien  upon  the  fund  in  the  hands  of  the 
court  for  distribution.  NothinjLC  is  more  common  in  our  courts,  upon  the  distribution 
of  money,  than,  upon  the  sugj^estion  by  one  holdinpj  a  junior  lien  that  an  older  execu- 
tion has  been  jjaid,  to  send  that  fact  to  be  tried  by  a  jury  at  law.  Why  may  not  a 
sng:gestion  that  there  is  fraud  in  the  judgment,  be  tried  in  the  same  way?  It  is  not 
enough  to  say,  that  the  party  has  a  remedy  in  equity ;  for  over  questions  of  fraud,  the 
jurisdiction,  by  express  statute,  and  indeed  by  the  general  law,  in  courts  of  law  and 
equity,  is  concurrent.  We  think  it  is  at  the  option  of  the  party  to  move  at  law  or  go 
into  equity.  If  he  chooses  to  abide  the  rules  of  the  law,  the  risk  is  his ;  the  court  has 
no  right  to  turn  him  away.  In  South  Carolina,  it  has  been  determined  that  a  judg- 
ment will  be  set  aside  at  the  instance  of  a  creditor,  upon  an  issue  of  fraud  before  a 
court  of  law." 

1  Reed  v.  Ennis,  4  Abbott  Pract.  R.  393.        2  jjale  v.  Chandler,  3  Michigan,  531. 

[198] 


CHAP.  XI  ]  AND   FRAUDULENT   ATTACHMENTS.  §  276 

attachment  on  the  ground  that  the  cause  of  action  therein  is  one 
for  which  an  attachment  is  not  allowed  by  law,  was  recognized ; 
but  the  court  seemed  to  consider  that  this  right  could  not  be 
exercised  until  the  question  of  the  final  disposition  of  the  attached 
fund  among  the  attachers,  after  all  had  obtained  judgments,  should 
come  before  the  court.^ 

These  cases,  proceeding  upon  principles  of  strict  right  and  jus- 
tice, and  fulfdling  the  law's  aversion  to  every  species  of  collusion 
and  fraud,  it  is  to  be  hoped  will  be  regarded  as  authority  in  all 
other  courts,  and  lead  to  the  general  adoption  of  a  practice  which 
thus  summarily  assails  an  evil  that  cannot  be  so  efifectively  reached  . 
by  any  other  means,  ^     . 

§  276.  Besides  the  remedy  afforded  in  the  mode  pointed  out  in 
the  preceding  section,  there  is  no  doubt  that  an  attaching  creditor, 
injured  by  a  fraudulent  attachment,  may  maintain  an  action  for 
the  iiijiiOS  either  against  the  plaintiff  therein,  or  the  officer  who 
made  it  with  knowledge  of  its  fraudulent  character.  Thus,  where 
officer  A.,  on  Saturday  afternoon,  attached  goods  in  a  store,  and 
removed  part  of  theiu  to  another  building,  and  then  closed  and 
locked  the  store,  and  took  the  key  away ;  and  early  on  Monday 
morning  officer  B.  called  on  the  defendant  with  another  attach- 
ment, and  the  defendant  showed  liim  the  goods,  and  B.  thereupon 
attached  them,  knowing  the  existence  of  A.'s  attachment ;  and  A. 
sued  B.,  in  trover,  for  the  value  of  the  goods ;  it  was  held,  that  B.'s 
attaching  the  goods  with  the  defendant's  assistance,  showed  collu- 
sion to  defeat  the  first  attachment,  and  that  fraud  was  a  necessary 
inference  from  the  facts,  and  that  the  action  was  maintainable.^ 

Of  the  same  character  is  the  following  case:  A.  &  B.,  separate 
creditors  of  C,  sued  out  attachments  against  him,  and  levied 
them  on  his  property.  Afterwards  D.  obtained  an  attachment 
against  C,  and  the  officer  returned  a  levy  on  the  same  property, 
subject  to  the  attachments  of  A.  &  B.  At  a  subsequent  time 
A.  <fe  B.  were  desirous  that  the  property  should  be  sold  on  their 
writs,  but  D.  gave  written  notice  to  the  officer  that  he  sliould 
resist  the  demands  upon  which  the  attachments  of  A.  &  B.  were 
founded,  as  being  fraudulent,  and  that  he  should  object  to  the  bale 
of  the  goods  until  judgment  should  be  recovered  in  due  conrse  of 
law,  and  the  goods  be  sold  on  execution,  and  that  "if  the  officer 

1  Ward  V.  Uoward,  12  Ohio  State,  158.  ^  Denny  v.  Warren,  16  Miu«.s.  420. 

[199J 


§  278  OF   SIMULTANEOUS,  SUCCESSI\T:,  conflicting,        [chap.  XI. 

should  sell  the  goods  on  the  writs,  it  would  be  at  his  jx-ril.  The 
officer,  notwithstanding,  sold  the  property,  and  when  A.  S:  B.  ob- 
tained judgments,  ajjjjropriated  the  proceeds  to  the  satisfaction 
thereof,  leaving  nothing  to  satisfy  D.'s  claim ;  whereupon  D. 
brought  an  action  on  the  case  against  the  officer  for  failing  to 
satisfy  his  execution.  On  the  trial  it  appeared,  that  in  the  action 
instituted  by  A.  there  were  two  demands,  one  of  which  was  just, 
the  other  without  any  consideration  and  fraudulent.  It  was  held, 
that  embracing  this  fraudulent  demand  in  the  suit,  made  the  whole 
action  void  as  to  D.'s  right  as  an  attaching  creditor,  and  that  the 
officer  was  liable  to  D.^ 

§  277.  An  action  on  the  case  for  conspiracy  also  lies  in  favor 
of  a  creditor,  against  his  debtor  and  a  third  person,  who  have 
procured  the  property  of  the  debtor  to  be  attached  in  a  suit  for  a 
fictitious  debt,  and  applied  to  the  payment  of  the  judgment  ob- 
tained in  the  action,  in  order  to  prevent  creditors  from  obtaining 
payment  out  of  the  property  ;  the  creditor  having  subsequently 
attached  the  same  goods,  and  not  being  able  to  procure  payment 
of  his  deljt,  in  consequence  of  the  prior  attachment ;  and  the 
debtor  being  insolvent.''^ 

§  278.  In  a  statutory  proceeding  in  Massachusetts,  taken  by  an 
attaching  creditor,  to  avoid,  as  fraudulent,  a  previous  attachment, 
an  important  question  arose,  in  connection  with  the  admissibility 
in  evidence,  on  behalf  of  the  first  attacher,  of  the  declarations  of 
the  defendant,  made  after  the  suit  of  tiie  lirst  attacher  was  brought, 
that  his  demand  was  band  fide  and  for  a  valuable  consideration. 
Such  declarations  were  held  to  be  admissible,  on  the  following 
grounds.  "  The  party  tluis  admitted  [to  contest  the  previous 
attachment]  is  in  fact  adversary  in  the  suit  to  both  plaintiff  and 
defendant,  for  his  interposition  is  bottomed  upon  a  supposed  con- 
federacy between  them  to  defraud  him  and  other  creditors,  by  a 
false  claim  and  attachment,  upon  which  the  property  is  to  be 
withdrawn  from  the  attachment  of  bona  fide  creditor.  In  this 
state  of  the  controversy,  it  would  seem  that  tlie  declarations  or 
confessions  of  either  of  the  parties  against  whom  the  fraud  is 
alleged,  ought  not  to  be  admitted  to  repel  the  charge.  And  yet 
it  is  obvious  that  a  bona  fide  creditor  who  has  made  a  just  attach- 

1  Fairfield  v  Baldwin,  12  Tick.  388.  2  Adams  v.  Paige,  7  Pick.  542. 

[200J 


CHAP.  XT.]  AND   FRAUDULENT   ATTACmiENTS.  §  279 

ment  may  be  injured,  if,  by  reason  of  the  admission  of  a  third 
party  into  the  suit,  he  is  to  be  deprived  of  evidence  which  he  would 
be  entitled  to,  if  no  one  had  interposed  between  him  and  the 
debtor.      There  may  be  collusion   between  the   debtor  and  the 
second  attaching  creditor  to  defraud  the  first,  and  this  kind  of 
fraud  is  quite  as  easy  to  be  practised  as  the  other.     The  debtor 
may  deny  the  validity  of  the  first  cause  of  action,  for  the  purpose 
of  favoring  the  second  attachment,  and  the  first  attaching  creditor 
ought  to  be  allowed  the  benefit  of  any  acknowledgment  made  by 
the  debtor,  it  being  often  difficult  to  furnish  direct  proof  of  the 
consideration  of  a  note  or  other  contract Whatever  the  ad- 
mission of  the  debtor  may  avail,  the  plaintiff  is  entitled  to  the 
benefit  of.     It  probably  will  avail  little  against  any  evidence  of 
fraud  ;  but  there  seems  to  be  no  objection  to  its  being  weighed  by 
the  jury."i     And  it  was  afterward  held,  that  such  admissions, 
made  after  the  subsequent  attachcr  was  admitted  to  defend  the 
previous  suit,  were  equally  admissible  in  evidence  for  the  first 
attachcr.^ 

It  is  dilTorent,  however,  in  regard  to  giving  in  evidence  declara- 
tions of  the  first  attaching  creditor,  in  a  proceeding  taken  by  a 
subsequent  attacher  to  defeat  his  attachment.  There  they  are  con- 
sidered as  entirely  inadmissible.^ 

§  279.  In  Massachusetts,  the  statute  authorizing  proceedings  of 
this  description,  formerly  provided  that  any  subsequent  attaching 
creditor  of  the  same  property  which  was  attached  by  a  prior  at- 
tacher, might  be  admitted  to  defend  the  first  suit,  in  like  manner 
as  the  party  sued  could  or  might  have  done  ;  and  it  was  held,  that 
in  order  to  entitle  a  subsequent  attacher  to  this  privilege,  it  was 
not  necessary  that  his  suit  should  have  been  instituted  in  the  same 
court  as  the  first.*  In  a  proceeding  taken  under  that  statute,  the 
subsequent  attacher  offered  to  prove  that  a  portion  of  the  note  on 
whicli  the  first  suit  was  founded  was  not  due  to  the  plaintiff;  but 
it  was  objected  that  the  subsequent  attacher  could  make  no  de- 
fence which  the  defendant  could  not  himself  make,  and  that  the 
defendant  could  not  make  such  a  defence  ;  but  the  court  consid- 
ered that  position  untenable.^ 

1  Strong  r.  Wheeler,  5  Pick.  410.  *  Lambert  v.  Craig,  12  Pick.  199. 

8  Carter  v.  Gregory,  8  Pick.  16.5.  *  Lodge  v.  Lodge,  5  Mason,  407. 

*  Carter  v.  Grei;ory.  8  Pick.  165.     The  views  of  the  court  were  thus  expressed :  "  The 

[201] 


§  280  OF   SIMULTANEOUS,  SUCCESSIVE,  CONFLICTING,        [CHAP.  XL 

§  280.  Tlic  (lifTiculties  attending  the  practical  operation  of  tlio 
Massachusetts  statute,  authorizing  a  subsequent  attacher  to  make 
any  defence  to  a  previous  attachment,  which  tlie  defendant  might 
make,  led  to  the  substitution  for  it  of  another  j)rovision,  to  the 
efTect  that  any  person  claiming  title  or  interest  in  the  attached 
property,  might  be  allowed  to  dispute  the  validity  and  effect  of  the 
prior  attachment,  on  the  ground  that  the  sum  demanded  therein 
was  not  justly  due,  or  that  it  was  not  payable,  when  the  action 
was  commenced.  Under  this  statute  this  case  arose.  A.  made 
out  and  signed  a  note  to  B.,  without  B.'s  knowledge,  and  caused 
an  attachment  to  be  made  thereon  ;  which  B.  assented  to  and 
ratified  afterwards,  but  not  until  a  second  attachment  had  been 

object  of  the  stntnte.  under  which  this  defence  was  mnde,  is  avowedly  to  prevent  fraud 
in  the  nttacliment  of  real  or  personal  estate  ;  and  the  provisions  of  the  statute  are 
fouiidtd  upon  a  supposed  collusion  between  parties  to  tlie  suit,  to  defraud  creditors. 
To  limit  the  defence  which  the  suhse<jiicnt  attaching  creditor  is  authorized  to  make,  to 
such  facts  as  the  original  defendant  mi;;ht  himself  aver,  would  l>e  to  impair  in  a  j,'reat 
deforce  the  use  of  the  statute,  jis  intended  by  the  le;;islature.  In  cases  of  fraud  and 
collusion,  the  defendant  cannot  a\>oid  his  contract  by  setting  ujt  fraud  in  defence  against 
it.  It  is  only  when  a  contract  is  avoided  by  the  statute,  as  in  the  ca.>ic  of  usury  or 
gaming,  or  when  the  consideration  is  illegal,  that  this  can  be  done.  Merc  want  of  con- 
sideration, arising  from  a  fraudulent  bargain  l)etween  the  promisor  and  promisee,  not  in 
viol.ition  of  any  positive  law,  but  for  the  purpose  of  defrauding  others,  cannot,  wo 
think,  bo  shown  in  evidence  by  a  party  to  the  fraud,  in  deftiue  of  an  action  upon  his 
contract.  And  it  is  such  contracts  that  the  legislature  intended  should  Ix;  incpiired  into 
by  third  persons,  whose  rights  are  airected.  The  words  '  in  like  manner,'  in  the  stat- 
ute, do  not  limit  the  defence,  but  only  regulate  the  mode  of  making  it It  is  said, 

then,  that  the  plaintiff  is  entitled  to  judgment,  because  he  produces  a  note  which  the 
original  defendant  could  not  gainsay.  If  this  be  true,  the  statute  is  of  no  use;  for  its 
object  is  to  admit  others  to  a  defence,  which  grows  out  of  a  collusive  agreement  between 
the  plaintiti'  and  the  original  defendant.  Supj)Osc  the  note  to  be  fabricated  for  the  .sole 
purpose  of  abstracting  the  i)roperty  of  the  promisor  from  his  creditors,  shall  not  this  be 
shown  ?  And  yet  the  promisor  himself  could  not  show  it.  Or  even  suppose  the  note 
to  be  given  for  a  valuable  consideration,  but  that  the  sole  purpose  of  the  attachment 
was  to  defeat  other  creditors  and  to  hold  the  property  to  the  use  of  the  debtor;  shall 
not  this  be  shown  ?     And  yet  the  promisor  could  not  show  it. 

"But  it  is  said,  that  if  the  legislature  so  intended,  their  act  is  without  authority, 
because  the  plaintitf,  as  between  himself  and  the  debtor,  is  entitled  to  a  judgment. 
The  same  maybe  said  in  all  cases  of  default,  or  confessions  of  judgment;  and  the 
argument  will  go  further,  for  after  judgment  the  plaintiff  is  entitled  to  execution  and 
the  fruits  of  it ;  and  yet,  even  at  common  law,  a  subsequently  attaching  creditor 
may  defeat  the  first  attachment,  by  showing  that  the  judgment  was  collusively  ob- 
tained. 

"  The  statute  has  only  provided  a  mode  of  preventing  collusive  judgments,  instead 
of  leaving  the  injured  party  to  the  relief  before  existing  at  common  law;  which  was 
defective,  because  its  final  success  depended  upon  the  ability  of  the  wrongdoer  to  re- 
spond in  damages.  The  statute  arrests  the  evil  in  the  beginning,  and  rescues  the  prop- 
erty itself  from  the  unlawful  appropriation  intended.  Surely  this  was  a  just  and  projer 
subject  of  legislation  ;  and  the  parties  interested  all  have  a  hearing  in  court,  and  may 
maintain  their  several  rights." 
[202] 


CHAP.  XI.]        AND  FRAUDULENT  ATTACHilENTS.  §  282 

made  by  C,  who  contested  the  validity  of  A.'s  attachment,  on  the 
ground  that  the  note  sued  on  was  not  a  debt  due  to  B.  at  the  time 
of  the  attachment.     The  court  sustained  this  position,  because  — 
among  other  reasons — the  note  did  not  constitute  an  express 
promise  until  assented  to  by  B.^     But  where  a  debt  was  due  and 
payabhj  when  an  attachment  was  taken  out,  and  the  attachment 
was  contested  V)y  a  subsequent  attacher,  on  the  ground  that  it  was 
obtained  l)y  the  order  and  direction  of  the  defendant,  and  that  the 
assent  of  the  creditor  was  not  given  until  after  the  subsequent  at- 
tachment had  been  levied,  the  court  held,  that  under  the  statute 
in  question,  the  subsequent  attacher  had  no  right  to  make  the  ques- 
tion ;  because  the  facts  did  not  show  that  the  debt  was  not  justly  due 
and  owing,  or  that  it  was  not  payable,  when  the  suit  was  brought.^ 

§  281.    Whether  if  a  debtor  himself  cause  an  attachment  to 
issue,  and  to  be  executed  on  his  property  in  favor  of  his  creditor, 
without  the  knowledge  of  the  latter,  a  subsequent  attacher  can 
take  advantage  of  that  fact  to  dissolve  the  attachment,  does  not 
seem  to  liave^bcen  directly  decided;  but  in  Massachusetts  a  case 
very  n(-arly  of  that  description  was  presented,  where  a  debtor,  at 
the  time  when  his  debt  was  incurred,  promised  to  secure  his  cred- 
itor in  case  of  dilTiculty  ;  but  the  manner  in  which  this  was  to  be 
done  was  not  agreed  upon ;  and  the  delator  afterward,  being  in 
failing  circumstances,  caused  his  own  property  to  be  attached  on 
behalf  of  tlie  creditor,  but  without  his  knowledge ;  and  the  credi- 
tor, before  he  was  informed  of  the  attachment,  had  said,  that  if 
the  debtor  did  not  secure  him,  he  was  a  rascal.     The  court  held, 
that  the  agreement  to  secure  the  creditor  was  tantamount  to  the 
creation  ofan  agency  in  the  debtor,  which  authorized  him  to  cause 
the  attachment ;  or,  if  not,  that  the  attachment  was  ratified  by  the 
creditor ;  and  in  either  case  it  was  valid  against  subsequent  attach- 
ing creditors.^ 

§  282.  There  are  other  cases  in  which  attachments  will  be  held 
to  be  dissolved,  by  the  acts  of  the  plaintiff,  as  to  subsequent  at- 
taching creditors. '  Each  attacher  has  a  right  to  the  surplus  of  the 
defendant's  property,  after  satisfying  the  previous  attachments  ; 

1  Baird  V.  Williams,  19  Pick.  381.  In  Swift  f.  Crocker,  21  Pick.  241,  the  attach- 
ment w;vs  sued  out  and  in  part  executed  before  the  note  was  signed,  and  was  dissolved 
bv  a  subsequent  attacher.  n,  t>-  i     loa 

•  2  Baird  V.  WUliams.  19  Pick.  381.  '  Baylej  v.  Bryant,  24  T.^k^  198- 


§  282  OF   SIMULTANEOUS,  SUCCESSIVE,  CONFLICTING,        [cHAP    XI. 

and  any  act  of  an  attadiing  creditor,  after  the  institution  of  his 
suit,  alteriuf^  his  writ,  or  changing  or  increasing  tlie  (U'lnand  upon 
which  he  attached,  is,  in  ed'ect,  a  fraud  upon  the  subsequent  at- 
tachers,  and  is  regarded  as  dissolving  his  attachment,  so  far  as 
they  are  concerned. 

On  the  first  of  these  points,  that  is,  an  alteration  of  the  writ,  it 
has  been  hehl,  that  an  attachment  is  dissolved  as  between  credi- 
tors, by  amending  the  writ,  under  leave  of  court,  by  striking  out 
the  name  of  one  of  two  defendants,  so  that  the  action  stands  as 
against  the  other  defendant  only.'  So,  too,  by  changing  the  place 
to  which  the  writ  is  made  returnable.* 

On  the  second  point,  tliat  of  clianging  or  increasing  the  demand 
upon  whicli  the  attachment  was  obtained,  it  has  been  decided,  that 
the  filing  of  a  new  count  to  the  declaration,  which  does  not  aj)j)ear 
by  the  record  to  he  for  the  same  cause  of  action  as  that  originally 
sued  on,  will  dissolve  the  attachment.  A  case  of  this  description 
first  came  up  in  Massachusetts,  uj)on  the  following  facts.  The  first 
attacher's  writ  contained  two  counts,  the  first,  upon  a  promissory 
note  for  $171.H2,  the  second  for  82,000,  niont'v  had  and  received. 
"While  the  action  was  pending,  the  jilaintiff  added  three  counts  ; 
the  first  for  i 322,  the  balance  of  an  account  annexed,  in  which 
the  charges  were  principally  for  labor,  articles  sold  and  delivered, 
and  money  paid;  the  second,  on  a  promissory  note  for  S9G;  and 
the  third,  on  a  promissory  note  for  $500.  Uj)on  this  state  of  facts 
a  controversy  arose  between  this  plaintiff  and  a  subsequent  at- 
tacher,  each  claiming  the  proceeds  of  the  proj»erty  attached.  The 
court  declared  the  first  attachment  dissolved,  and  used  the  follow- 
ing language :  "  We  think  that  after  an  attachment,  or  holding  to 
hail,  the  plaintiff  cannot  alter  his  writ  to  the  injury  of  a  subsequent 
attaching  creditor,  or  of  bail.  The  subsequently  attaching  creditor 
has  a  vested  right  to  the  excess  beyond  the  amount  of  the  judg 
ment  to  be  rendered  upon  the  writ  of  the  first  attaching  creditor, 
as  it  was  when  served.  So,  bail  are  not  to  be  made  liable  for  a 
greater  sum  than  was  included  in  the  writ  at  the  time  when  they 
entered  into  the  bail-bond.  It  is  said  that  the  second  count  would 
cover  the  additional  counts  ;  but  it  cannot  be  ascertained  from  the 
record  that  it  was  intended  to  cover  them."  ^ 

1  Peck  V.  Sill,  3  Conn.  157. 

2  Burrows  v.  Stoddard,  3  Conn.  431 ;  Starr  v.  Lyon,  5  Ibid.  538. 
«  Willis  V.  Crookcr,  1  Pick.  204. 

r204] 


CHAP.  XI.]        AND  FRAUDULENT  ATTACHMENTS.  8  284 

Tlie  same  court  held  the  same  views,  in  a  subsequent  case,  where 
the  declaration  contained  a  count  for  money  had  and  received,  and 
a  count  for  goods  sold  and  delivered,  and  the  plaintiff,  in  the  pro- 
gress of  the  suit,  under  a  leave  to  amend,  filed  nine  new  counts, 
on  notes,  checks,  and  for  money  lent,  &c.  The  court  there  say : 
''  The  claim  or  cause  of  action,  for  the  security  of  which  a  creditor 
obtains  his  lien  In'  attachment,  should  be  clearly  indicated  in  the 
writ  and  declaration.  The  declaration  should  set  forth  clearly  the 
cause  or  causes  of  action  to  be  secured  by  the  attachment.  And 
it  would  be  a  manifest  injustice  to  a  subsequently  attaching  credi- 
tor, to  j)ermit  the  pi-ior  attacher  to  amend,  by  the  introduction  of 
claims  which  were  not  originally  set  forth  and  relied  upon  in  the 
declaration  ;  for  he  lias  a  vested  interest  in  the  surplus.  Tiie 
rights  of  the  attaching  creditors  should  be  ascertained  as  they  ex- 
isted and  were  disclosed  by  the  writ  and  declaration,  at  the  time 
when  they  made  their  attachments.  If  it  were  otherwise,  the  at- 
tachment law  might  be  made  a  most  powerful  engine  of  fraud, 
that  would  work  up  the  whole  of  the  debtor's  property  for  the  use 
of  the  nr>t  attacher,  who  should  think  proper  to  enlarge  his  claims 
suflficiently  to  embrace  it."  ^ 

So,  where  a  defendant  in  an  attachment  suffered  default,  and 
the  plaintiff  took  judgment  for  the  whole  claim  in  suit,  without 
deducting  therefrom  the  amount  of  certain  articles  received  by 
him  from  the  defendant  in  part  payment  of  the  claim  ;  it  was 
held,  that  his  attachment  was  thereby  vacated  as  to  subsequent 
attaching  creditors.- 

§  2>!n.  In  Maine,  where  the  parties,  during  the  pendency  of  a 
suit  by  attachment,  made  a  settlement  of  all  their  accounts,  by 
which  a  balance  was  found  due  to  the  plaintiff,  for  which  judgment 
was  entered  in  his  favor  by  consent ;  and  the  settlement  included 
some  demands  fur  which  the  writ  contained  no  proper  counts,  and 
some  which  were  not  payable  till  after  the  action  was  commenced; 
it  was  held,  that  the  attachment  was  dissolved  in  toto,  as  to  subse- 
quent attaching  creditors.*^ 

§  284.    A  very  strong  case  was  where,  by  a  slip  of  the  pen,  in 

1  Fairfield  v.  Baldwin,  12  Pick.  388. 
^  Pierce  i'.  Partridge,  3  Metcalf,  44. 
•  Clark  V.  Foxcroft,  7  Maine,  348 ;  Fairbanks  v.  Stanley,  18  Ibid.  296. 

[205] 


§  2SG  OF   SLMLLTANEOUS,  SUCCESSIVE,  CONFLICTING,        [cHAP.  XL 

making  out  the  writ,  the  commaTid  to  the  officer  was  to  attach  to 
the  vahie  of  aix  dolhirn  only,  while  the  cause  of  action  set  forth, 
and  the  jiulgnient  afterwards  recovered,  were  for  more  than  four 
hundred  doUars.  With  the  consent  of  the  defendant,  the  writ  was 
auKMided  hy  inserting  the  word  hmdnd  after  the  word  nix;  and 
yet  it  was  decided,  that  a  sul)se(iuent  attacher  was  not  affected  by 
the  amendment,  and  that  he  might  maintain  an  action  against  the 
officer  for  applying  the  attached  property  in  full  satisfaction  of  the 
previous  attachment ;  there  not  being  sufficient  to  satisfv  both.^ 

§  285.  But  where  an  attorney,  inadvertently,  and  without  the 
knowledge  of  his  client,  took  a  ju<lginent  and  obtained  execution 
for  a  sum  known  by  his  client  to  l>e  more  than  was  really  due  him, 
and  on  disc(»v('ring  his  mistake,  went  to  the  officer  holding  the 
execution,  and  stated  the  siim  that  was  actually  due  the  plaintiff, 
and  that  he  had  come  to  give  instructions  relative  to  the  service 
of  the  execution;  it. was  held,  that,  as  there  was  no  fraudulent 
intent,  but  a  mere  mistake,  the  attachment  was  not  therei)y  di&- 
solved.2  And  so,  a  mere  amendment  of  the  declaration,  by  which 
the  amount  to  be  recovered  is  not  increased,  and  no  new  cause  of 
action  is  introduced,  will  not  vacate  an  att<ichment.  If,  for  exam- 
ple, there  are  money  counts  only  in  the  declaration,  which  refer  to 
a  bill  of  particulars  annexed,  containing  a  description  of  bills  of 
exchange,  notes,  <fec.,  which  are  to  be  offered  in  evidence ;  counts 
subsequently  added,  technically  describing  those  bills,  notes,  <fec., 
would  not  be  considered  as  new  causes  of  action,  but  as  entirely 
consistent  with  the  intent  of  the  plaintilT,  as  originally  manifested 
in  his  writ  and  declaration.  If,  however,  such  an  intent  cannot 
be  inferred  from  the  writ  and  declaration,  the  new  counts  will  be 
considered  to  be  for  other,  and  not  for  the  original,  causes  set 
forth.3 

§  286.  But  where  a  declaration  contains  the  money  counts, 
how  is  it  to  be  determined  what  demands  were  put  in  suit,  and 

1  Putnam  v.  Hall,  3  Pick.  445 ;  Danielson  v.  Andrews,  1  Ibid.  156. 

2  Fclton  V.  Wadsworth,  7  Cashing,  587.  See  in  the  opinion  of  the  court  the  remarks 
upon  the  cases  of  Fairfield  v.  Baldwin,  and  Pierce  v.  Partridge.  See,  also,  Laighton  v. 
Lord,  9  Foster,  237. 

8  Fairfield  v.  Baldwin,  12  Pick.  388;  Miller  v.  Clark,  8  Ibid.  412;  Ball  v.  Claflin,  5 
Ibid.  303  ;  Laighton  v.  Lord,  9  Foster,  237 ;  McCarn  v.  Rivers,  7  Iowa,  404 ;  Austin  v. 
Burlington,  34  Vermont,  506. 
[206] 


CHAP.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  288 

what  were  afterwards  introduced  ?  The  rule  seems  to  be,  that 
tliose  whicli  the  plaintiff  owned  when  the  suit  was  brought,  and 
which  were  due  and  payable,  and  liable  to  be  introduced  without 
amendments,  and  which  were  so  introduced,  and  judgment  ob- 
tained upon  tliem,  cannot,  in  the  absence  of  contradictory  proof, 
be  regarded  as  not  in  suit :  for  instance,  none  of  the  cases  decide 
that  an  attachment  would  be  dissolved,  by  proving  a  promissory 
note  under  a  money  count  originally  contained  in  the  declara- 
tion.^ 

* 

§  287.  Though,  as  before  stated,  a  mere  amendment  of  a  dec- 
laration, by  which  the  amount  to  be  recovered  is  not  increased, 
and  no  new  cause  of  action  is  introduced,  will  not  dissolve  an 
attachment,  yet  it  has  been  held  in  Massachusetts,  that  the  intro- 
duction of  new  defendants  into  the  writ  after  the  levy  of  it,  will 
have  that  effect.  Thus,  where  partnership  property  was  attached, 
upon  a  writ  containing  the  names  of  three  only  out  of  four  part- 
ners, and  the  next  day  the  name  of  the  fourth  was  inserted,  and  a 
new  attachment  made  upon  the  same  property ;  but  in  the  mean 
tune  another  creditor  had  attached  the  property,  upon  a  writ 
against  the  four  partners ;  it  was  decided,  that  the  first  attach- 
ment was  vacated  as  against  the  second  attaching  creditor.^ 

§  288.  Another  act  of  a  plaintiff  by  which,  as  to  subsequent 
attachers,  it  is  said  his  attachment  will  be  dissolved,  is  the  refer- 
ring of  the  action,  and  all  ihmanda  hettveen  the  plaintiff  and  de- 
fendant, to  arbitration  ;  unless  it  be  shown  that  the  reference 
covered  only  the  demands  sued  upon.  The  Supreme  Court  of 
Maine  carried  the  doctrine  a  step  further,  and  held,  that  it  makes 
no  difference  whether  any  new  demand  beyond  the  original  cause 
of  action  is  introduced,  or  if  introduced,  whether  it  is  allowed,  or 
not.  The  mere  act  of  referring,  where  the  rule  of  reference  is 
carried  into  effect,  is  considered  to  dissolve  the  attachment ;  on 
the  principle,  that,  for  the  sake  of  a  general  settlement  with  his 
adversary,  or  for  any  other  reason  satisfactory  to  himself,  the 
plaintiff  consents  to  waive  and  docs  waive  the  security  he  holds 
under  his  attachment.  And  the  court  say,  "  Unless  such  a  prin- 
ciple should  be  adhered  to,  a  jdaintiff's  demand  might  be  essen- 
tially increased,  by  the  introduction  of  new  causes  of  action,  and 

1  Fairbanks  v.  Stanley,  18  Maine.  296.  ^  Denny  v  Ward,  3  Pick.  199. 

[207] 


§  289  OF   SIML'LTANEOUS,  SUCCESSIVE,  CUNFLICTING,        [cilAl*.  \J. 

ill  this  manner  a  second  attaching  creditor  might  lose  the  benefit 
of  his  attachnioiit,  and  though  with  no  iinmorul  motive  on  tho 
part  of  the  phiiiitilf,  such  second  creditor  would  he,  in  legal  con- 
tem[)lution,  defrauded  of  his  rights."^ 

The  l)etter  rul<%  however,  seems  to  l)e  that  adopted  in  Massa- 
chusetts, where,  though  it  was  at  first  held,  that  the  mere  fact  of 
entering  into  such  a  reference  dissolves  the  attachment,^  in  a  sul>- 
sequent  case  that  decision  was  limited,  and  it  was  determined  that, 
if  it  be  shown  that  no  new  demand  was  admitted  \>y  the  referees, 
the  attacluncnt  will  not  be  dissolved.^ 

§  289.  Fraudulent  attachments  will  also  be  overturned,  when 
brought  in  conflict  with  the  rights  of  third  perst)ns,  other  than 
attaching  creditors.  Thus,  where  A.,  lx)ing  desirous  of  jiurchas- 
ing  certain  mortgaged  land,  paid  the  mortgagee  the  value  of  his 
interest  tlierein,  and  the  mortgagee  reconveyed  to  the  mortgagor, 
to  enable  him  to  give  a  deed  of  tho  whole  estate  to  A.,  but  immo 
diately  afterwards,  and  before  the  deed  to  A.  was  e.xccuted,  at- 
tached the  land  in  a  suit  against  the  mortgagor,  the  attachment 
was  declared  frauduhMit  and  void  as  against  A.* 

A  case  involving  similar  principles,  came  up  in  Vermont,  under 
a  petition  to  foreelose  a  mortgage.  A.  and  B.  were  creditors  of  C, 
who  had  engaged  to  give  A.  security  for  his  del)t  by  a  mortgage 
on  lands.  On  a  certain  day,  finding  himself  in  failing  circum- 
stances, C.  applied  to  B.  and  stated  to  him  his  pledge  to  A.,  and 
requested  B.  to  prepare  a  note  and  a  mortgage  to  A.  to  secure  tho 
payment  of  the  note ;  at  the  same  time  disclosing  to  B.  his  situa- 
tion, and  pointing  out  to  him  property  to  a  large  amount,  which 
he  requested  B.  to  attach  for  his  own  security.  To  this  arrange- 
ment B.  made  no  objection,  and  C.  executed  the  note  and  mort 
gage  and  took  them  away,  and  the  mortgage  was  lodged  for 
record  early  the  next  morning.  In  the  mean  time,  B.  sued  out 
attachments  against  C,  and  attached  the  premises  embraced  in 
the  mortgage,  together  with  the  other  property  designated  by  C. 
The  controversy  was  between  A.,  claiming  the  property  under  tho 
mortgage,  and  B.,  claiming  it  under  the  attachment.  It  was  hehl, 
that  the  attempt  by  B.  to  defeat  the  arrangement  he  had  previously 

1  Clark  V  Foxcroft,  7  Maine,  348.     See  Mooney  v.  Kavanaugh,  4  Maine,  277 
»  Hill  V.  Hunncwell,  1  Pick.  192. 

•  Sceley  v.  Brown,  14  Pick.  177. 

*  Spear  v.  Hubbard,  4  Pick.  143. 

[208] 


CHAP.  XI.]  AND   FRAUDULENT   ATTACHilENTS.  §  289 

acquiesced  in,  was  inconsistent  with  good  faith,  and  surreptitious, 
and  that  the  mortgage  should  be  preferred  to  the  attachment.^ 
In  New  Hampshire,  a  similar  case  arose,  on  this  state  of  facts. 

A.  had  mortgaged  certain  real  estate,  apparently  for  its  full  value. 

B.  and  C.  being  both  creditors  of  A.,  B.  informs  C.  that  he  pro- 
poses to  procure  an  arrangement  by  which  that  mortgage  shall  be 
removed,  and  one  taken  to  himself,  and  C.  advises  him  to  eflfect 
the  arrangement,  which  is  at  once  proceeded  with.  Before  the 
necessary  writings  are  prepared,  and  while  they  are  in  progress, 

C.  causes  an  attachment  to  be  made  of  the  land ;  which  does  not 
become  known  to  B.  and  the  other  parties,  until  their  agreement 
was  completed  and  the  deeds  recorded.  B.  then  filed  his  bill  in 
equity,  setting  forth  the  facts,  and  praying  that  C.  might  be  en- 
joined against  claiming  anything  in  the  land  contrary  to  the  title 
of  the  [)laiiitifT  under  the  mortgage,  and  that  the  attachment  might 
be  postponed  to  the  mortgage.  The  court,  considering  the  attach- 
ment under  such  circumstances  to  operate  as  a  direct  fraud  upon 
B.,  granted  the  decree  according  to  the  prayer  of  the  bill.^ 

So,  where  a  conveyance  had  been  made  of  certain  lands,  on  the 
7th  of  May,  and  before  it  could  be  properly  recorded,  one  attached 
the  lands  to  secure  a  note  signed  by  the  grantors  on  the  8th  of 
May,  and  payable  in  thirty  days,  but  which  was  antedated,  as  the 
3d  of  April  preceding,  being  the  time  when  the  goods  which 
formed  the  consideration  of  it  had  been  sold  on  a  credit  of  six 
montlis  ;  it  was  held,  that  the  antedating  the  note,  and  creating  a 
present  debt,  on  which  the  attachment  of  the  lands  was  made,  was 
a  fraud  on  the  grantees,  and  did  not  disturb  their  rights  under  the 
conveyance,  whatever  might  be  the  validity  of  the  proceedings  as 
between  the  parties.' 

i  Temple  v.  Hooker,  6  Vermont,  240.         «  Briggs  v.  French,  2  Sumner,  251. 
•  Buswell  V.  Davis,  10  New  Ilamp.  413. 

14  [209] 


§  200  CUSTODY   OF   ATTACllKD   TROPERTY.  [CHAI'.  XD 


CHAPTER    XII. 

CUSTODY    OF    ATTACllKD    PROPERTY. 

§  290.  TiiK  writ  of  attiicliinent,  in  its  action  upon  tangiblo 
proi)crty,  has  no  value  or  t'lTicacy,  except  as  a  means  of  keeping 
tlie  property  until,  under  the  final  process  in  the  cause,  it  can,  by 
a  sale,  be  made  available  to  satisfy  the  plaintiff's  demand.  Hence, 
the  first  duty  of  the  attaching  officer  is  to  retain  possession  of  tho 
property.  If  he  waste  or  lose  it,  or  suffer  it  to  i>e  divortrd  to  some 
otiier  purj)osc,  or  to  go  out  of  his  possession,  except  in  due  course 
of  law,  he  is  liable  for  it  to  the  plaintiff,  if  he  obtain  judgment  and 
execution  in  the  attachment  suit,  or  to  the  defendant,  if  that  suit 
fails.i 

It  is,  therefore,  indispensably  necessary  that  the  officer  should 
sustain  such  a  relation  to  j)ersonal  property  which  he  has  seized, 
as  will  enal»le  him  t«j  hold  it  to  answer  the  jiurpose  for  which  it 
was  attached.  To  this  end,  he  is,  by  the  b'vy  of  the  attaehment, 
and  the  reduction  of  the  property  into  his  possession,  vested  with 
a  special  property  in  the  latter,  which  enables  him  to  protect  the 
rights  he  has  acquired  ;2  and  this  property  constitutes  an  insura- 
ble interest,  which  he  may  protect  by  obtaining  insurance  thereon, 
though  he  is  not  under  oldigation  to  do  so.* 

1  Snnfonl  i-.  Borinf:,  12  California.  5.19  ;  Post,  §  42.1. 

2  Barker  r.  Millor,  G  Johns.  19.');  Ilotchkiss  r.  MVickar,  12  r)id.  403;  Wilhrnnam 
V.  Snow,  2  SanniK-rs,  47;  Ladd  v.  North,  2  Mass.  514;  Gihbs  r.  Chase,  10  Bud.  125; 
^Vllittier  r.  Suiith,  11  Bud.  211  ;  Poole  r.  Snnonds,  1  New  Hamp.  289;  Himtinpton  v. 
Blaisdill,  2  B.id.  317;  Odiomc  v.  Colley,  B>id.  66;  Lathrop  v.  Blake,  3  Foster,  46; 
Nidiols  V.  Valentine,  3f.  Maine,  322;  Stiles  v.  Davis,  1  Blaek,  101.  A  condensed 
sununarv  of  the  rules  eoneernini;  the  relation  of  an  officer  to  personal  property  he  has 
attached,  is  thus  };iven  by  Isuam,  J.,  in  Bralcy  >\  p'reneh,  28  Vennont,  546:  "In  the 
attachnunt  of  personal  estate,  the  officer  acipurcs  a  special  property,  and  the  ri;:ht  to 
its  custoily  and  possession.  For  any  injury  to  it,  the  ri<.'lit  of  action  is  in  the  officer, 
as,  in  any  termination  of  the  case,  he  is  accountable  for  the  projKjrty  either  to  tho 
creditor  or  del)tor.  That  special  property  the  officer  may  release,  .so  as  to  destroy  any 
lien  upon  the  property  created  by  tlie  attachment.  He  may  permit  the  possession  of 
the  projjcrty  to  remain  with  the  debtor,  in  which  case  it  can  be  held  by  a  subsequent 
attacliment,  or  a  subsequent  purchaser,  free  from  any  lien  or  claim  of  the  officer  upon  it. 
His  rij:ht  over  the  property  is  independent  of  the  creditor  or  debtor,  as,  in  a;;iven  event, 
he  is  responsible  for  it  to  the  debtor,  and  in  another  event  to  the  creditor ;  and  that  right 
exis's  so  long  as  that  special  property  continues  in  him 

8  White  V.  Madison,  26  Howard  Pract.  R.  481. 
[210] 


CHAP.  Xn.]  CUSTODY   OF   ATTACHED   PROPERTY. 


§291 


Tliis  special  property  of  the  officer  continues  so  long  as  he  re- 
mains liable  for  the  attached  effects,  either  to  have  them  forth- 
coming to  satisfy  the  plaintiff's  demand,  or  to  return  them  to  the 
owner,  upon  tlie  attacliment  being  dissolved  ;  but  no  longer.^  For 
any  violation  of  his  possession,  while  his  liability  for  the  property 
continues,  he  may  maintain  trover,^  trespass,^  or  replevin.*  And 
he  alone  can  maintain  any  such  action  ;  it  cannot  be  maintained 
by  the  attacliment  plaintiff^  If  he  die  before  action  brought  in 
his  favor  against  a  trespasser,  his  administrator  may  maintain 
trover,  for  the  benefit  of  the  attaching  creditor.^  And  if  the 
conversion  take  place  while  the  officer  who  attached  the  property 
remained  in  office,  his  subsequent  resignation  of  his  office  will  not 
deprive  liim  of  his  right  of  action.^  In  order  to  maintain  his 
special  property,  and  to  entitle  himself  to  the  continued  protection 
of  the  law,  tiie  officer  must,  in  his  proceedings  with  the  property 
subsequent  to  the  attachment,  comply  with  all  the  requirements 
of  the  law,  or  show  some  legal  excuse  for  not  doing  so ;  and  if  he 
docs  not,  he  becomes  liable,  not  only  to  those  on  whose  behalf  lie 
acts,  l)ut  also  to  the  owner  of  tlie  property,  and  those  claiming 
under  him  and  standing  in  liis  situation.^  Thus,  if  he  sells  the 
property  witliout  lawful  authority,  he  is  counted  a  trespasser  ah 
initio ;  and  the  pendency  of  the  action  in  wiiicli  the  attachment 
was  made  is  mo  oI)stacle  to  an  immediate  suit  liy  the  owner.'' 

§  201.  Nothing  is  more  important  in  sustaining  the  officer's 
special  property  in  articles  attached,  than  his  continued  possession 
of  tliem,  actual  or  constructive.  This  point,  regarded  in  reference 
to  the  protection  of  attached  property  from  other  attachments,  and 
the  continuation  of  the  officer's  lien,  falls  properly  under  another 
division  of  this  woric.^o     But,  considered  with  a  view  to  the  rendi- 

1  Collins  p.  Smith,  16  Wrmont,  9;  Gates  v.  Gates,  15  Mass.  310. 

2  Lu.l.len  r.  Leavitt,  9  Muss.  104;  Badlatn  r.  Tucker,  1  Pick.  389;  Lowry  r.  "Walker, 
5  Vermont,  181  ;  Lathrop  r.  Blake,  3  Foster,  46. 

"  Brownell  v.  Manchester,  1  Pick.  232 ;  Bmllam  r.  Tucker,  Ibid.  389 ;  "Walker  w. 
Foxcrott,  2  Maine,  270;  Strout  v.  Bradbury,  5  Ibid.  313;  "Whitney  v.  Ladd,  10  Ver- 
mont,  165. 

«  Perley  r.  Foster,  9  Ma.-ss.  112;  Gordon  v.  Jenncy,  16  Ibid.  465 

*  Skinner  v.  Stuart,  .39  Barbour,  206. 
«  Hall  V.  Walbrid-xe,  2  Aikens,  215. 

^  Polley  v.  Lenox  Iron  Works,  4  Allen,  329. 

*  Jordan  v.  Gallup,  16  Conn.  536. 

*  Ross  V.  Philbrick,  39  Maine,  29. 

^''  See  Chap.  XV'I.  on  Dissolution  of  Attachment. 

[211] 


§  292  CUSTODY   OF   ATTACHED   PBOPERTY.  [CHAP.  HI. 

tion  of  tlio  property,  at  the  termination  of  tlje  suit,  to  meet  tho 
cxlj^oncy  of  the  execution,  should  one  he  ohtained,  or  to  be  re- 
turned to  the  defendant,  should  judgment  be  given  in  his  favor,  or 
the  attachment  be  otherwise  dissolved,  a  class  of  questions  arise, 
which  we  now  j)roeoed  to  consider. 

§  202.  And,  first,  to  what  degree  of  care  and  diligence  in  tho 
keeping  of  attiicluMl  j)n)j)erty  is  an  officer  held  ?  This  question 
received  a  careful  and  elaltorate  consideration  by  the  Sujtremo 
Court  of  Vermont,  which  is  referred  to  here,  rather  than  in  an- 
other [)lace,  because  it  was  raised  in  connection  with  the  officer's 
liiibjlity  to  the  i)laintifr  in  attachment,  for  not  having  property 
forthcoming  on  execution.  Certain  cattle  were  attached,  and  tho 
officer  being  sued  for  failing  to  have  them  forthcoming,  to  be  sold 
on  execution,  offered  testimony  to  show  that  when  they  were  at- 
tiched,  he  delivered  them,  for  safe  keeping,  to  one  A.  ;  that  tho 
j)laintifT's  agent,  who  ordered  the  attachment  made,  was  present 
and  made  no  objection  ;  that  A.  put  the  cattle  into  a  pasture,  with 
a  good  and  sufficient  fence;  and,  in  a  few  days  after,  the  defendant, 
the  owner  of  tiie  cattle,  without  the  knowledge  or  consent  of  tho 
officer,  or  of  A.,  took  down  the  fence  of  the  pasture,  drove  tho 
cattle  out,  and  put  them  in  his  own  pasture,  and  gave  such  notice 
that  other  creditors  attached  and  held  the  cattle.  This  testimony 
was  rejected  l>y  the  court,  and  the  matter  came  up  on  the  propriety 
of  tho  rejection.  The  Supreme  Court,  after  examining  a  number 
of  cases  cited  in  suj)port  of  the  plaintiff's  action,^  jiroceed  as  fol- 
lows :  — 

"  Thus  stand  the  decided  cases  which  have  been  presented  to 
the  court.  And  it  is  needless  to  say  they  do  not  afford  much  aid 
in  determining  the  question  ixjfore  us.  We  are  left  to  decide  it, 
much  as  we  judge  the  general  principles  of  the  law  of  bailment 
and  the  kindred  analogies  require. 

"  So  far  as  the  general  principles  of  the  law  of  bailment  are 
concerned,  there  is  not  at  the  present  day,  perhaps,  any  very 
striking  reason  to  be  urged  why  sherifTs  should  be  laid  under  any 
higher  degree  of  obligation  in  regard  to  keeping  property,  than 
other  bailees  for  pay,  i.  e.  ordinary  care  and  diligence.     But  early 

1  Those  cases  were,  Jcnner  v.  Joliffe,  6  Johns.  9,  and  9  Johns.  .381  ;  Cillev  r.  Jcn- 
ness,  2  New  Hamp.  87  ;  Phillips  v.  Bridge,  11  Mass.  242  ;  Tyler  v.  Ulmer,  12  Ibid   163; 
Congdon  >.'.  Cooper,  15  Ibid.  10;  and  Runlett  v.  Bell,  5  New  Hamp.  433. 
[21-2]' 


CHAP.  Xll]  CUSTODY   OF   ATTACHED   PROPERTY.  §  292 

in  the  history  of  the  common  law  it  was  decided  that,  in  regard 
to  property  taken  on  final  process  (and  in  England  it  is  taken  on 
no  other  ordinary  process),  the  officer  making  the  levy  should  be 
liahle  for  its  safe   keeping  and   forthcoming,  in  all  cases,  unless 
hindered  by  public  force,  or  inevitable  accident,  and  that  he  could 
not  excuse  himself  by  showing  a  rescue  oven.^     The  same  rule  of 
liability  obtains  in  regard  to  the  body,  when  once  in  custody  upon 
execution.^     But  when  the  body  is  arrested  on  mesne  process,  the 
sheriff  may  return  a  rescue.®     The  reason  assigned  in  the  books 
is,  that,  in  the  case  of  arrest  and  custody  on  final  process,  the 
officer  has  usually  more  time  for  preparation,  and  may,  if  he  will, 
have  the  aid  of  tlie  /)o>(j«e  of  the  county ;  Init  in  the  case  of  mesne 
process,  ho  must  arrest  when  the  debtor  is  pointed  out  to  him, 
and  may  be  often  required  to  do  it  suddenly,  and  cannot  always 
be  supposed  to  have  the  posse  at  his  command,  at  a  moment's 
warning.    To  my  mind,  the  attempt  at  making  a  distinction  in  the 
cases,  shows  more  reason  for  dispensing  altogether  with  any  such 
rigorous  requirement,  in  either  case,  than  it  does  for  so  wide  a 
distinctifjn  between  the  two  cases  ;  but  such  is  the  law,  and  so  are 
the  reasons  ujwn  which  its  sages  have  seen  fit  to  erect  distinctions. 
"The  only  qiiestion  now  is,  wliether  we  shall  adopt  the  analogy 
of  this  distinction  in  regard  to  property.     The  court  are  disposed 
to  do  it,  for  two  reasons:  1.  If  we  hold  the  sheriff  and  other 
officers  lial)le,  in  the  case  of  prop<Mty  attached  on  mesne  process, 
only  for  ordinary  care  and  diligence,  such  as  other  bailees  for  pay 
are  required  to  exercise,  we  place  the  liability  upon  a  reasonable 
basis ;  whereas  the  rigorous  accountability  imposed  upon  certain 
classes  of  bailees,  on  account  of  some  supposed  facility  or  tempta- 
tion which  they  have  been  said  to  possess  for  collusive  rescues  or 
robberies,  is  not  founded  upon  any  just  warrant,  either  of  sound 
judi^ment  or  constant  ex])erience.     I  refer  to  the  cases  of  common 
carriers,  and  sheriffs,  in  regard  to  property  taken  on  final  process. 
2.  We  think  there  is  far  more  reason  for  the  distinction  which  we 
here  make,  in  regard  to  the  liability  of  sheriffs  for  the  keeping  of 
poods  on  mesne  and   final  process,  in  analogy  to  their  different 
liiil.ility  for  keeping  the  body  when  arrested  on  those  different 
processes,  than  there  is  for  the  distinction  made  in  this  latter  case. 

1  Mildmay  i'.  Smith,  2  Saun.l.  343,  n.  3;  Clerk  i'.  Withers,  2  Ld.  Raym.  1075. 
«  12  Mod.  10;  O'Neil  r.  Miirson,  5  Burrow,  2812;  2  Saund.  244,  note  a. 
'  Cases  cited  above,  and  note  to  2  Saund.  345. 

[2131 


§  202  CUSTODY   OF   ATTACHKD   PROPF.RTY.  [CRAI'.  XII. 

For  when  property  is  taken  on  final  process,  it  is  to  be  kept  but  a 
sliort  time,  at  longest,  so  that  it  may  be  closely  watched,  and  krpt 
with  this  severe  diligence  for  a  few  days,  without  materially  inter- 
fering with  the  other  duties  of  the  sheriflf.  But  in  the  attachment 
of  jjnipi'rty  on  meane  process,  in  matters  of  collection,  there  will 
ordinarily  be  a  delay  of  from  six  to  eighteen  months,  and  in  mat- 
ters of  controversy  this  delay  will  be  extended  to  many  years  ;  and 
to  require  the  sheritTs  to  keep  all  proj)erty,  l)y  them  attached  on 
mesne  process,  at  all  hazards,  except  inevitable  accident,  or  pui)lic 
force,  would,  of  course,  justify  an  expense  in  proportion  to  the 
degree  of  responsil)ility  required,  and  would  thus,  in  many  cases, 
defeat  the  object  of  the  attachment,  by  consuming  the  proj»erty  in 
needless  expense.  We  think,  then,  there  is  very  good  reason  why 
the  officer  attaching  property  on  mesne  process,  shouM  only  be 
liable  to  the  same  extent  as  bailees  for  hire.  If  be  return  the 
attachment,  he  \s,  primd  facie,  liable  to  produce  the  projK?rty  on 
execution,  but  as  we  think,  may  excuse  himself  by  showing  that 
it  is  not  in  his  power,  and  that  he  has  been  guilty  of  no  fault."  ^ 

1  lJrid>,'c.s  V.  I'crry,  U  Vermont.  262;  Smith  v.  Church.  27  Ibid.  168.  In  Bripes  u. 
Tiivlor,  28  VcTiiiont,  ISO,  tliis  sul.jeit  came  upain  hefore  tiie  same  court,  when  IJkd- 
FiKi.i),  C.  J.,  jiresinted  the  following  vie\vn :  "As  n  new  trial  becomes  ncocssarv,  it 
will  be  of  some  importance  to  inquire  in  rcpard  to  the  proper  mode  of  defining  the 
duty  of  the  ofhcer  in  keeping  poods  attached  on  meme  process.  It  is  usually  defined  ia 
praiticc,  in  tlii>  State,  certainly  so  far  as  we  know^  much  as  it  was  in  this  case,  bv  tho 
use  of  the  terms  'ordinary  and  common  care,  diligence,  and  prudence.'  And  it  is 
probable  enouph,  these  terms  mipht  not  always  mislead  a  jury.  Hut  it  seems  to  us, 
they  arc  somewhat  calculated  to  do  so.  If  the  object  be  to  express  the  medium  of  care 
and  prudence  among  men,  it  is  certain  these  terms  do  not  sipnify  a  fixe<l  quality  of 
mediocrity  even.  For  if  so,  they  would  not  be  susceptible  of  the  degrees  of  compari- 
son, as  more  ordinary  and  must  ordinary,  which  medium,  and  middle,  and  mean,  are 
not.  The  truth  is,  that  ordinary  and  middling  and  mediocrity  even,  when  applied  to 
rhnrneter,  do  import  to  the  mass  of  men,  certainly,  a  very  subordinate  quality  or  de- 
gree; something  quite  below  that  which  we  desire  in  an  agent  or  servant,  and  which 
we  have  the  ri;,'lit  to  require  in  a  public  servant,  esj>ecially.  A  man  who  is  said  to  be 
middling  careful,  or  ordinarily  careful,  is  understoo<l  to  be  careless,  and  is  sure  never 

to  be  trusted The  court,  in  Briilges  v.  Perry,  as  will  be  obvious  from  a  careful 

examination,  had  no  purpose  of  excu-ing  this  class  of  officers  fi-om  any  degree  of  cure 
and  diligence,  which  careful  men  would  expect  under  the  circumstances.  And  this,  it 
gecms  to  us,  is  the  true  measure  of  liability,  in  all  cases  of  bailment.  The  bailee  is . 
bound  to  that  degree  of  diligence,  which  the  manner  and  nature  of  his  employment 
make  it  rcasonal)lc  to  expect  of  him;  anything  less  than  this  is  culpable  in  him,  and 
renders  him  liable.  The  conduct  of  men  in  general  in  the  region  where  the  attach- 
ment is  made,  may  be  some  guide  to  what  ought  to  be  required  of  the  defendant  in 
keeping  property  attuclied.  AVe  mean,  of  course,  prudent  and  careful  men  ;  for  no  one 
is  expected  to  go  very  essentially  beyond  the  common  custom  of  the  country  in  such 
matters,  as  it  must  be  attended  with  extraordinary  expense,  and  a  question  might 
thereby  arise  as  to  the  propriety  of  incurring  such  expense."  See  Moore  v.  Westervelt, 
I  Bosworth,  357. 
[•214] 


CHAP.  Xn.]  CUSTODY   OF   ATTACHED   PROPERTY.  §  295 

The  same  doctrine  was  held  bj  the  Superior  Court  of  New  Hamp- 
shire.^ 

§  293.  As  previously  stated,  the  officer  must  comply  with  all 
the  requirements  of  the  law,  or  show  some  legal  excuse  for  not 
doing  so.  We  will,  therefore,  endeavor  to  ascertain  what  will,  and 
what  will  not,  excuse  an  officer,  for  not  having  attached  property 
forthcoming  on  the  plaintifif's  execution. 

§  294.  Of  Bufjicient  Excuse.  There  can  be  no  doubt  that  an 
officer  may  excuse  his  failure  to  have  property  in  hand  to  answer 
the  execution,  by  showing  that,  thougli  attached  as  the  property 
of  the  defendant,  it  was,  in  fact,  not  his.  Whether,  if  this  fact 
was  known  to  him  when  he  levied  the  attachment,  and  he,  not- 
withstanding, made  tlie  levy,  and  returned  the  property  as  at- 
tached, he  could  afterwards  excuse  himself  on  that  ground,  is 
questionable  ;  "^  but  where,  at  the  time  of  the  levy,  he  believes  the 
property  to  be  the  defendant's,  and  takes  it  as  such,  and  it  turns 
out  afterwards  that  it  was  not,  and  he  fails  to  have  it  ready  to  meet 
the  execution,  he  can  certainly  escape  liability  by  proving  the  fact 
to  have  been  so.^  So,  if  an  officer  attach  property  of  the  defend- 
ant, which  is  by  law  exempt  from  attachment,  he  cannot  be  held 
responsilde  for  its  non-delivery  on  execution,  unless  it  was  at- 
tached with  the  consent  of  the  defendant.*  So,  if  he  attach 
property  which  is  in  euntodia  hgia,  and  therefore  not  attachable, 
he  is  not  liable  for  failing  to  have  it  forthcoming  on  execution.^ 
And  if  attached  property,  of  which  due  care  is  taken  by  the  offi- 
cer, be  lost  by  fire  or  theft,  the  officer  is  not  liable  for  the  loss : 
otherwise,  however,  if  it  be  burned  or  stolen  while  he  omits  due 
care  to  prevent  such  loss.^ 

§  295.    Of  imufficient  Excuse.     An  officer  cannot  protect  him- 

1  Kendall  i'.  Morse,  43  New  Hamp.  553. 

*  French  v.  Stanley,  21  Maine,  512. 

«  Fuller  /•.  Holden,  4  Miiss.  498;  Tyler  v.  Ulraer,  12  Ibid.  163;  Denny  r.  "Willard, 
11  Pick.  519  ;  Canada  r.  Southwick,'  16  Ibid.  556  ;  Dewey  v.  Field,  4  Metcalf,  381  ; 
Jordan  i'.  Gallup,  16  Conn.  536;  Cilley  r.  Jenness,  2  New  Hamp.  87;  French  v.  Stan- 
ley, 21  MHinc,  512  ;  Chapman  v.  Smith,  16  Howard  Sup.  Ct.  114;  Mayne  v.  Seymour, 
6  Wendell,  .309 ;  Mason  v.  Watts,  7  Alabama,  703. 

*  Cilley  V.  Jenness,  2  New  Hamp.  87. 

6  Hale  V.  Duncan,  Brayton,  132;  Ante,  §  251. 

'  Dorman  r.  Kane,  5  Allen,  38 ;  Starr  v.  Moore,  3  McLean,  354. 

[215] 


§  297  a  CUSTODY  of  attached  property.  [chai*.  xn. 

self  ft'om  his  obligation  to  have  the  property  forthcoming  on  exe- 
cution, by  making  roturn  that  he  attached  it  "  ut  the  rixk  of  the 
plaintiff."'  Such  a  return  could  not  allect  the  rights  of  the  cred- 
itor, or  relievo  the  officer  from  any  portion  of  his  responsibility.^ 
Nor  can  he  contest  the  validity  of  the  judgment  against  the  de- 
fendant in  the  action  in  which  he  attached  the  j)roperty,  for  the 
purpose  of  relieving  himself  from  responsibility  for  the  property.^ 

§  200.  If  an  officer  attach  property  under  an  informal  writ,  and 
afterwards  the  writ  is  alten-d  and  made  t(j  assume  a  h'gal  ft>rm, 
and  the  plaintiff  obtain  judgment  upon  it,  the  subsequent  altera- 
tion will  not  excuse  the  officer  from  keeping  the  proj»erty  safely, 
that  it  may  be  applied  to  satisfy  the  plaintilFs  judgment,  or  re 
turned  to  the  defendant,  if  ho  should  become  entitled  to  it.^ 

§  207.  Thtj  ninoval  of  attached  property  out  of  an  officer's 
precinct,  without  his  consent,  does  not  prevent  him  from  pursuing 
and  reclaiming  it  anywhfn^  even  though  removed  into  another 
State;*  nor  does  it  excuse  his  failure  to  have  it  forthcoming  on 
oxecution.  Therefore,  where,  in  an  action  against  an  officer  for 
such  a  failure,  the  property  consisted  of  a  quantity  of  logs,  and  ho 
offered  to  prove  that  the  logs  were  afloat  in  a  body,  with  a  boom 
around  them,  on  their  way  from  one  point  to  another,  and  that  tho 
current  of  the  water  and  the  jtower  of  the  wind  were  so  great,  that 
the  officer,  with  any  force  he  could  command,  could  not  stop  tho 
logs  in  his  precinct,  and  that  the  i)arties  in  possession  of  thera 
were  able  to  resist,  and  did  successfully  resist,  his  taking  or  hold- 
ing possession  of  the  logs,  until  they  had  arrived  in  another 
county ;  it  was  held,  that  the  evidence  was  rightly  rejected  ;  tho 
fiicts,  if  true,  constituting  no  defence.^  Nor  will  he  be  excused 
because  the  property  was  taken  from  him  by  a  trespasser.^ 

§  297  a.  But  if  the  officer  act  under  statutory  pronsions  which 
dispense  with  his  actual  custody  of  the  attached  property,  and, 
while  the  property  is  out  of  his  actual  custody,  it  be  wrongfully 

1  Lovejoy  v.  Hiitchins,  23  Maine,  272. 

2  West  r.  Meserve,  17  Now  Hamp.  432. 
8  Childs  r.  Ham,  23  Maine,  74. 

*  Utloy  V.  Smith,  7  Vermont,  154;  Rhoads  v.  "Woods,  41  Barbour,  471. 

*  Lovejoy  v-  Hntchins,  23  Maine,  272. 
6  Lovelli'.  Sabin,  15  New  Harap.  29. 

r216] 


CHAP.  XII.]  CUSTODY   OF   ATTACHED  PROPERTY.  §  298 

taken  away  and  sold  by  the  defendant,  he  cannot  be  held  responsi- 
ble for  not  producing  it  on  execution.  This  was  decided  in  Mas- 
sachusetts, under  a  statute  in  these  words :  "  When  an  attachment 
is  made  of  any  articles  of  personal  estate,  which  by  reason  of 
their  bulk,  or  otlier  cause,  cannot  be  immediately  removed,  a  copy 
of  the  writ  and  of  the  return  of  the  attachment  may,  at  any  time 
within  three  days  thereafter,  be  deposited  in  the  office  of  the  clerk 
of  the  town  in  which  it  is  made,  and  such  attachment  shall  be 
equally  valid  and  etfectual,  as  if  the  articles  had  been  retained  in 
the  possessi(jn  and  custody  of  tlie  officer."  The  officer  attached 
property  which,  by  reason  of  its  nature  and  bulk,  could  not  be 
easily  removed,  and  the  defendant,  without  his  knowledge  or  con- 
sent, removed  and  sold  it.  There  was  no  proof  of  negligence  or 
official  misconduct  on  the  part  of  the  officer,  or  that  the  loss  of 
the  property  could  have  been  prevented  by  any  care  on  his  part, 
without  retaining  the  possession.  The  court  said:  "The  language 
of  the  statute  is  this  :  '  Such  attachment  shall  be  equally  valid 
and  effiictual,  as  if  the  articles  had  been  retained  in  the  possession 
and  custody  of  the  officer.'  We  think  it  follows  clearly  that  prop- 
erty thus  attached,  although  a  lien  is  created  upon  it  for  the 
benefit  of  the  creditor,  is  not  to  be  regarded  as  in  the  possession 
and  custody  of  the  officer,  and  tliat  no  such  responsibility  devolves 

ujKju  liim  as  if  it  were We  do  not  mean  to  imply  that  the 

officer  might  not  be  res[X)nsiblo  for  any  neglect  or  misconduct  in 
relation  to  the  property.  If  there  were  any  collusion  with  the 
debtor,  wrongful  omission  to  make  the  attachment  known  to  him, 
or  neglect  of  interfering  to  protect  the  property,  when,  by  a  change 
of  circumstances,  its  removal  and  reduction  into  the  officer's  pos- 
session became  proper  or  necessary,  the  rule  might  l)e  different. 
We  only  decide  that  the  officer  is  not  responsible  as  if  the  goods 
were  in  his  actual  custody."  ^ 

§  298.  The  capture  hy  a  hostile  force  of  that  part  of  an  officer's 
precinct  in  which  he  had  attached  property,  will  not  excuse  him 
from  producing  the  same  on  execution,  unless  the  common  con- 
sequences of  a  capture,  according  to  the  laws  of  war,  should 
follow  ;  such  as  restraint  upon  the  persons  of  the  inhabitants 
captured,  which  would  prevent  their  removal,  and  upon  their 
effects,  so  that  they  could  not  be  withdrawn  from  the  control  of 

1  Hubbell  V.  Root,  2  Allen,  185. 

[217] 


§  800  CUSTODY   OF   ATTACHED   PROPERTY.  [CUAI'.  XII. 

the  captors.  If  tlio  capture  is  not  attended  with  these  effects, 
there  is  no  reason  why  the  obligation  of  any  citizen,  created  before 
the  capture,  should  be  destroyed  or  impaired.* 

§  209.  The  removal  of  an  officer  from  ofTice,  between  the  time 
of  levying  the  attachment  and  that  of  the  issue  of  execution,  will 
not  excuse  his  niilure  to  produce  the  property  to  meet  the  execu- 
tion ;  for  his  special  property  remains,  to  secure  the  plaintiff  in 
the  fruits  of  his  judgment.^  Nor  can  he  escape  liiil)ility  for  such 
failure,  because  the  execution  was  delivered  to  another  ollicer, 
instead  of  to  him.^  Nor  will  he  be  relieved  from  his  liability  for 
a  failure  of  his  deputy  to  produce  attached  property  to  answer 
the  execution,  by  reason  that  such  failure  took  place  after  the 
latter  hud  ceaseti  to  be  his  deputy,* 

§  200  a.  In  connection  with  the  matter  of  the  obligation  of  an 
attaeliing  officer  to  have  atUiched  property  fortlicoming  to  satisfy 
the  execution,  the  question  arose  in  New  York,  as  to  whom  the 
execution  should  bo  directed,  whore  the  attaching  officer  had  gone 
out  of  office  between  the  time  of  the  attachment  and  that  of  the 
issue  of  the  execution.  In  the  case  in  which  the  question  arose, 
the  execution  was  an  ordinary  fieri  facias,  directed  to  the  shoritT 
of  the  county,  and  delivered  to  the  successor  in  office  of  him  who 
made  the  attachment.  He  demanded  the  attached  property  of  his 
predecessor,  who  failed  to  deliver  it,  and  the  plaintiff  in  the  attach- 
ment sued  him  for  this  failure.  Tiierc  was  no  statutory  provision 
directly  applicable  to  such  a  case,  and  the  Supreme  Court  of  New 
York  considered  the  question  on  principle,  and  by  analogy,  and 
came  to  the  conclusion  that  "  the  plaintiff  was  ahead  of  his  time 
in  demanding  the  attached  property  before  he  had  issued  a  proper 
execution "  ;  which  would  have  been  a  special  one  against  the 
attached  property,  and  should  have  been  delivered  to  the  person 
who,  as  sheriff,  had  levied  the  attachment ;  and  not  having  been 
delivered  to  him,  he  could  not  be  made  liable  for  failing  to  deliver 
the  property  to  his  successor.^ 

§  300.   It  is  no  excuse  for  failing  to  have  property  forthcoming, 

1  Congdon  v.  Cooper,  15  Mass.  10. 

^  Tukey  v.  Smith,  18  Maine,  125  ;  McKay  v.  Harrower,  27  Barbour,  46.3. 

8  Lovell  V.  Savin,  15  New  Hamp.  29. 

*  Morse  v.  Betton,  2  New  Hamp.  184.        ^  McKay  v.  Harrower,  27  Barbour,  463. 

[218] 


CHAP.  XII.]  CUSTODY    OF   ATTACHED   PROPERTY.  §  301 

that  it  wa.s  of  a  perishable  nature,  and  was,  therefore,  suffered  to 
remain  in  ihc  (lefeudant's  possession.  The  officer's  duty  is,  when- 
ever its  further  detention  would  expose  it  to  ruin,  and  thus  defeat 
the  object  of  the  attachment,  to  expose  it  fairly  to  public  sale,  and 
account  for  only  the  net  proceeds.^ 

The  di.^^position  of  attached  property,  which  is  perishaljle  in  its 
nature,  or  the  keeping  of  which  would  be  attended  with  great 
expense,  is,. to  a  considerable  extent,  now  regulated  by  statutory 
provisions,  and  not  left  to  the  discretion  of  the  officer.  The  court 
in  wliich  the  suit  is  pending  is,  in  many  States,  authorized  to 
order  a  sale  during  the  pendency  of  the  suit.  In  such  a  case  it 
was  hckl  by  the  Supreme  Court  of  ^lissouri,  that  the  power  con- 
fided to  the  court  was  for  the  benefit  of  both  parties,  debtor  as 
well  as  creditor,  the  object  of  the  sale  being  merely  to  change  the 
form  of  the  property  ;  and  that  the  plaintiiriiad  no  right,  as  in  the 
case  of  an  execution,  to  order  the  officer  to  stop  the  sale  ;  and,  if  the 
officer  should  neglect  to  sell  as  ordered,  his  responsibility  would 
depend,  as  in  similar  cases  of  disobedience  to  the  proper  mandates 
of  the  court,  upon  the  validity  of  the  excuse  he  may  offi3r,  and  the 
mere  order  of  the  plaintilT  would  constitute  none  whatever.^ 

§  301.  An  officer  attached  a  pleasure  carriage  and  several 
wagons  and  sleds,  which  he  left  in  open  fields,  where  they  were 
allowed  to  remain  several  months  exposed  to  the  weather.  He 
was  sued  for  neglect  in  preserving  and  taking  care  of  the  property. 
At  the  trial  the  plaintitf  insisted,  as  a  matter  of  law,  that,  as  the 
officer  had  permitted  the  property  to  remain  exposed  to  the  weather 
and  unprotected,  whereby  it  had  suffered  damage  and  become 
reduced  in  value,  it  constituted  such  a  neglect  of  duty  on  the 
part  of  the  officer  as  would  render  him  liable.  But  the  court  left 
the  ipiestion  to  the  jury,  to  find  whether  the  officer  exercised 
ordinary  cai-e  and  prudence  in  the  custody  and  preservation  of  the 
property  attached,  and  instructed  the  jury  that  it  was  the  duty  of 
an  officer  attaching  property  to  use  ordinary  care  and  prudence 
in  the  custody  and  preservation  of  the  property,  and  that  ordinary 
care  and  prudence  was  such  as  men  of  ordinary  care  and  prudence 
usually  exercise  over  their  own  property ;  and  that  it  was  for  the 
jury  to  say  whether  it  was  common  or  ordinary  care  and  prudence 
to  keep  such  property  as  the  carriage,  wagons,  and  sleds  in  ques- 

l  Cilley  V.  Jenness,  2  New  Ilamp.  87.  ^  Qeters  v.  Achle,  31  Missouri,  380. 

[219] 


§  304  CUSTODY   OF  ATTACHED  PROPERTY.  [ciIAl'    XIL 

tioii  in  the  manner  in  which  they  were  kept.  This  ruling  of  the 
court  was  held  liy  the  Supremo  Court  of  Vermont  to  he  erroneous. 
Said  the  court,  "  We  do  not  think  a  judge  is  ever  hound  to  t'Ubmit 
to  a  jury  questions  of  fact,  resulting  uniformly  and  inevitably  from 
the  course  of  nature,  as  that  such  carriages  will  he  injured,  more 
or  less,  by  exposure  to  the  weather  during  the  whole  winter ;  or 
that  a  judge  is  bound  to  submit  to  a  jury  the  propriety  of  such  a 
course,  when  it  is  perfectly  notorious  that  all  prudent  uien  conduct 
their  own  alTairs  dilTerently.  This  uniformity  of  the  course  of 
nature  or  the  conduct  of  Inisiness,  becomes  a  rule  of  law.  But 
while  there  is  any  uncertainty,  it  remains  matter  of  fact,  for  the 
consideration  of  a  jury.  It  could  not  be  claimed  that  it  should 
be  submitted  to  a  jury  whether  cattle  should  be  fed  or  allowed  to 
drhik,  or  cows  be  milked,"  ^ 

§  302.  The  expense  attending  the  keeping  of  attached  property, 
is  no  excuse  for  failing  to  produce  it  on  execution.  Therefore, 
where  an  officer  had  attached  certain  cattle,  and  did  not  have 
them  forthcoming  under  the  execution,  and  he  was  sued  for  his 
failure  in  this  respect,  it  was  held,  that  he  could  not  show,  either 
in  bar  of  the  action  or  in  mitigation  of  damages,  that  the  country 
was,  at  the  time  of  the  attachment,  in  an  impoverished  state  as 
to  fodder  for  cattle,  ajid  that  had  he  taken  the  cattle  into  j)osses- 
sion,  and  kept  them  for  the  execution,  the  expense  would  have 
exceeded  the  value ;  and  that,  in  fact,  they  could  not  have  been 
kept  alive .^ 

§  303.  Where  an  officer  is  instructed  by  the  plaintiff 's^attorney 
to  deliver  attached  property  to  a  certain  person,  and  take  his  re- 
ceipt therefor,  and  he  does  so,  he  cannot  be  held  to  produce  the 
property  on  execution.^ 

§  304.  In  an  action  against  an  officer  for  failing  to  keep  atr 
tached  property,  so  as  to  have  it  on  execution,  he  cannot  be  per- 
mitted to  impeach  the  plaintiff's  judgment,  except,  perhaps,  on 
the  ground  of  fraud.*  Nor  can  he  take  advantage  of  the  loss  of 
the  writ  of  attachment ;  the  fact  of  the  existence  of  which  may 

1  Briggs  V.  Taj-lor,  28  Vermont,  180. 

2  Tyler  v.  Ulmer,  12  Mass.  163  ;  Sewall  v.  Mattoon,  9  Ibid.  535. 
»  Rice  V.  Wilkins,  21  Maine,  558. 

*  Adams  v.  Balch,  5  Maine,  188. 
[220] 


CHAP    Xn.J  CUSTODY   OF   ATTACHED   PROPERTY.  §  306 

be  proved  by  parol.i  He  may,  however,  show,  iii  mitigation  of 
damages,  that  the  execution  has,  since  suit  brought  against  him, 
been  satisfied  ;  but  the  plaintiff  will,  nevertheless,  be  entitled  to 
recover  nominal  damages  and  costs.^ 

§  oOo.  In  order  to  fix  the  officer's  liability  for  attached  prop- 
erty, it  is  necessary  that  a  demand  should  be  made  of  him  upon 
the  execution.  If  the  execution  be  jdaced  in  the  hands  of  the 
officer  who  made  the  attachment,  he  being  still  in  office,  that  will 
be  sufficient  notice  to  him,  that  the  plaintiff  claims  to  have  the 
attaclied  goods  applied  to  satisfy  the  execution.^  Where  no  place 
is  prescril)ed  by  law,  at  which  a  demand  must  be  made,  it  may  be 
at  his  place  of  abode,  or  wherever  he  may  be.  If  the  demand 
should  be  made  of  him  at  a  place  where  the  property  is  not,  and 
he  offers  to  deliver  it  to  the  officer  at  the  place  where  it  is,  it  will 
be  the  duty  of  the  officer  to  rei)air  to  such  ].lace  to  receive  it ;  but 
if  he  refuse  to  deliver  it  at  any  place,  this  refusal  will  subject  him 
to  an  action,  whether  the  property  was  at  the  place  where  de- 
manded, or  nut.-*  If  the  projierty  attached  has  been  sold  before 
judgment  and  execution,  by  consent  of  the  parties,  or  under 
statutory  authority,  tiie  officer  is  bound  to  keep  the  proceeds  of 
the  sale  in  his  liands  to  answer  the  execution,  and  the  delivery  of 
the  execution  to  him  authorizes  him  to  aj)ply  the  money  in  his 
hands  to  its  satisfaction.^ 

§  .^On.  When  an  attachment  has  been  dissolved,  by  reason  of  a 
judgment  in  favor  of  the  defendant,  or  otherwise,  the  special 
l^roj)erty.of  the  officer  in  the  effects  attached  is  at  an  end,  and  he 
is  l)ound  to  restore  them  to  the  defendant ;  and  if  he  fail  to  do 
so,  he  will  be  liable  therefor.  He  cannot  screen  himself  from 
this  liability,  by  delivering  the  property  to  the  plaintiff.  It  is  not 
his  duty  —  imleed  it  would  be  contrary  to  his  duty  —  to  make 
such  a  delivery  to  the  creditor,  even  after  his  demand  is  ascer- 
tained and  sanctioned  l)y  a  judgment.  Goods  attached  are  in  the 
legal  custody  of  the  officer,  and  he  is  accountable  for  them,  no 
less  to  the  defendant  than  to  the  plaintiff  in  the  attachment ;  and 
the  general  property  in  the  goods  is  not  changed,  until  a  levy  and 

1  Brown  i.  Richmond,  27  Vermont,  583.  *  Scott  v.  Crane,  1  Conn.  2.55. 

2  Brown  v.  Richmond,  27  Wrmoiit,  583.  5  Eastman  v.  Eveiuth,  4  Metcalf,  137. 
'  Humphreys  i-.  Cobb,  22  Maine,  380. 

[221] 


§  808  CUSTODY   OF    ATTACHED   PROPERTY.  [CRAP.  XII, 

sale  by  execution.^  But  in  order  to  entitle  the  defcnchint  t()  a 
return  of  the  property,  the  attaclunent  must  be,  in  fact,  dissolved. 
It  is  not  enough  that  the  defendant  has  settled  with  the  plaintilT 
tlie  matter  in  controversy,  and  is  entitled,  as  against  the  plaintilT, 
to  a  return  of  the  property.  The  fact  of  such  settlement  must 
be  brou'dit  home  to  the  officer,  bv  actual  notice,  or  bv  a  discon- 
tinuance  of  the  suit,  l)efore  the  defendant  can  maintain  an  action 
against  him  for  the  property.'' 

§  .807.  After  the  dissolution  of  an  attachment,  the  officer  is 
responsible  to  the  defendant  for  the  attached  property ;  but  while 
the  attachment  is  pendinp:,  can  the  defendant  maintain  an  action 
against  him  for  damage  done  to  the  property  through  his  negli- 
gence ?  In  Maine,  it  was  decided  that  he  cannot,  because  diiring 
the  pendency  of  the  attachment  the  officer  is  liable  to  the  plaintiff 
therein,  whose  claim  is  paramount  to  tliat  of  the  dt^fcjidant,  until 
the  attachment  is  dissolved  ;  and  that  a  right  of  action  does  not 
accrue  to  the  defendant  until  he  is  entitled  to  a  return  of  the 
property,  when  he  will  have  a  full  claim  to  indemnity.-^  In  Ver- 
mont, however,  the  opposite  ground  was  taken,  so  far  as  to  allow 
the  atta,chment  defendant  to  sue  the  ofUccr  in  such  case,  pending 
the  attachment,  but  it  was  intimated  that  the  attachment  plaintiff 
might  show  his  interest  in  the  recovery,  and  that  the  court  wpuld 
thereupon  order  a  stay  of  execution  till  the  creditor's  rights  were 
determined,  or  might  require  the  money  to  be  paid  into  court  to  be 
held  for  the  benefit  of  the  creditor,  if  he  should  finally  recover.* 

In  an  action  by  the  attachment  defendant  against  the  ofhccr, 
for  having  lost  or  wasted  a  portion  of  the  property,  the  latter  may 
excuse  himself  from  liability,  by  showing  that  he  had  apjdied  the 
amount  to  the  defendant's  use,  by  paying  with  it  the  expenses 
of  keeping  the  property,^  or  by  satisfying  with  it  other  executions 
against  the  defendant.* 

§  308.  But  the  liability  of  the  officer  to  the  defendant,  for  the 
attached  property,  does  not  necessarily  accrue,  in  all  cases,  im- 
mediately upon   the   dissolution   of  the   attachment  ;    but   must 

1  Blake  V  Shaw,  7  Mass.  505.     Sec  Sncad  v.  "Wegman,  27  Missouri,  176. 

2  Livingston  x\  Smith,  5  Peters,  90. 
8  Bailey  v.  Hall,  16  JIaine,  408. 

*  BrijrKS  v-  Taylor,  35  Vermont,  57. 

5  Twomblv  V.  Hunnewell,  2  Maine,  221.        ^  Bennett  v.  Brown,  31  Barbour,  158. 


CHAP.  XIl]  CUSTODY   OF   ATTACHED  PROPERTY.  §  309 

depend,  as  to  the  time  when  it  accrues,  upon  the  particular  cir- 
cuni.^tances  of  the  case.  Thus,  wliere  property  was  delivered  by 
the  ofTicer  to  a  receiptor,  approved  by  the  defendant,  and  the 
receiptor  failed  to  deliver  it  when  required,  it  was  held,  that  the 
defendant  could  not  maintain  an  action  against  the  officer  therefor, 
until  the  lapse  of  a  reasonable  time  to  enable  the  latter  to  recover 
it  from  the  receiptor.' 

§  309.  Where  an  officer  fails  to  keep  attached  property  to 
answer  the  execution,  there  is  no  reason  why  he  should  be  sub- 
jected to  a  different  rule  of  damages  from  that  which  prevails  in 
actions  generally,  against  officers  for  neglect  or  failure  of  duty ; 
that  is,  the  actual  injury  sustained  by  the  plaintiff  by  reason  of 
the  neglect  or  failure.  The  value  of  the  property  attached,  if  less 
tlian  the  amount  of  the  plaintiff's  judgment,  or  the  amount  of  the 
latter,  where  the  value  of  the  property  is  greater,  will  generally 
be  prima  facie  the  measure  of  damages,  subject  to  be  mitigated  by 
evidence  produced  by  the  officer.^  Therefore,  where  a  number  of 
successive  attachments  were  laid  on  property ;  and  all  the  plain- 
tiffs, excej)t  him  wIkjsc  writ  was  last  levied,  believing  that  the 
property  would  lessen  in  value,  and  that  tlie  proper  season  for 
selling  it  would  l)e  lost,  if  it  should  be  kejjt  until  final  judgment 
could  be  obtained,  directed  the  officer  to  sell  it,  and  hold  the  pro- 
ceeds to  satisfy  the  judgments  to  be  recovered,  in  the  order  of 
their  respective  attachments  ;  and  the  defendant  assented  to  the 
sale,  which  took  place  ;  and  a  greater  sum  was  produced  than 
would  have  been,  if  the  property  had  been  kept  and  sold  upon 
execution,  but  not  sufficient  to  satisfy  all  the  attachments,  and  the 
last  attacher  got  nothing,  and  brought  suit  against  the  officer ;  it 
was  held,  that,  though  he  had  departed  from  the  line  of  official 
duty,  and  the  plaintiff  was,  therefore,  entitled  to  recover  damages, 
yet,  as  tlie  plaintiff  would  have  got  nothing  if  the  officer  had  per- 
formed his  duty,  nominal  damages  only  could  be  recovered.^  But 
an -officer  is  not  entitled  to  have  a  reduction  made  from  the  full 
value  of  the  property,  in  mitigation  of  damages,  for  tlie  expenses 
which  miijht  have  attended  the  keeping,  had  it  been  kept  safely.* 

1  Bisscll  V.  Huntington,  2  New  Hamp.  142. 

*  Sc(l;,^wick  on  Dama|,'cs,  5.39-543. 
»  Rich  V.  Bell,  16  Mass.  294. 

*  Lovejoy  r.  Hiitchins,  23  Maine,  272;  Tyler  v.  Ulmer,  12  Mass.  163;  Sewall  v. 
MattooQ,  9  Ibid.  535. 

[2231 


§  311  CUSTODY  OF  ATTACHED  PROPERTY.  [cHAP.  Xn. 

§  310.  If  an  officer  state  in  his  return  the  value  of  projxjrty 
attuclied,  we  have  seen  that  he  is  primd  facie  bound  by  it,  and  the 
burden  is  on  him  to  show  that  the  vahiation  was  incorrect.* 
Wlien  sued  for  not  liaving  the  property  forthcoming  on  execution, 
if  there  be  no  other  evidence  of  vahie  than  that  furnished  by  the 
return,  the  officer  will  be  concluded  by  it;^  and  so,  it  seems,  if  it 
should  appear  that  the  plaiiitilT  relied  upon  the  return,  and  was 
thereby  led  to  abstain  from  efforts  to  get  further  security.^ 

§  311.  As  to  the  matter  of  expenses  attending  the  keeping  of 
attached  property,  there  can  bo  no  doubt  tliat  the  general  principle 
is,  that  where  an  ofTicer  is  required  to  jK-rform  a  duty  involving 
disbursements  of  money  out  of  his  pocket,  he  must  he  reimbursed. 
When  personal  projxjrty  is  attached,  it  is  to  be  kept  by  the  officer 
at  the  expense  of  the  defendant.  If  the  defendant  be  unwilling 
to  incur  this  expense,  he  must  replevy  it,  or  j»rocure  it  to  be  re- 
ceipted. If  the  oflficer  afterwards  receives  an  execution,  he  sells 
the  property,  and  takes  his  pay  for  the  expense  of  keeping,  out  of 
the  money  so  received,  and  applies  the  remainder  on  the  execu- 
tion.* Thus  the  defendant  pays  for  the  keeping.  If  the  defend- 
ant settles  the  debt  with  the  plaintitT,  so  that  no  execution  comes 
into  the  oflicer's  hands,  on  which  to  make  a  sale,  the  officer  may 
sustain  an  action  against  the  defendant  for  the  keeping.''  If  tho 
property  bo  sold  by  the  officer,  and  thereafter  the  defendant  satisfy 
the  attachments,  that  will  not  deprive  the  officer  of  the  right  of 
retaining  the  expense  of  keeping  out  of  the  money  in  his  hands.^ 
If  there  should  be  a  judgment  for  the  defendant,  or  the  suit  bo 
dismissed,  the  plaintiff  will  be  liable  for  the  expenses ;  ^  but  the 
officer  has  no  such  lien  on  the  property  as  will  enable  him,  under 
such  circumstances,  to  hold  it  for  the  payment  thereof.^  It  was 
held  in  Vermont,  that  if  the  officer  use  the  property  —  as,  for 
instance,  a  horse  —  sufficiently  to  pay  for  its  keeping,  he  cannot 
make  the  plaintiff  pay  for  such  keeping.^ 

1  Ante,  §  206.  -  French  v.  Stanley,  21  Maine,  512. 

*  Allen  V.  Doyle,  33  Maine,  420. 

*  Hanness  v.  Smith,  1  Zabriskie,  495;  Dean  t;.  Bailey,  12  Vermont,  142;  McNeil  v. 
Bean,  32  Ibid.  429. 

6  Dean  v.  Bailey,  12  Vermont,  142  ;  Sewall  v.  Mattoon,  9  Mass.  535. 

*  Gleason  ik  Brij^fjs,  28  Vermont,  135. 

7  Phelps  V.  Campbell,  1  Pick.  59  ;  Tarbell  v.  Dickinson,  3  Gushing,  345. 

8  Felker  v.  Emerson,  17  Vermont,  101. 

9  Dean  r.  Bailey,  12  Vermont,  142. 

[2243 


CHAP.  XIIl]  BAIL   AND   DELIVERY   BONDS.  §  314 


CHAPTER    XIII. 

BAIL   AND   DELIVERY  BONDS. 

§  312.  I.  Bail-BoncU.  In  many  of  the  States,  provisions  exist  for 
tlie  dissolution  of  an  attachment,  upon  the  defendant  giving  bond, 
witli  a{)proved  security,  fur  the  payment  of  such  judgment  as  may 
be  recovered  in  the  attachment  suit.  This  is,  in  effect,  merely 
Special  Bail,  and  was  so  regarded  in  Mississippi,  where  it  was 
held,  that  the  abolishment  by  law  of  imprisonment  and  bail  for 
debt,  abolished  the  right  to  take  such  a  bond  in  an  attachment 
suit.^  In  some  States,  as  under  the  custom  of  London,  the  de- 
fendant is  not  allowed  to  plead  to  the  action  until  he  has  given 
such  a  bond  ;  but  generally  he  may  appear  without  it. 

§  313.  It  is  the  defendant's  right  to  give  this  bond  at  any  time 
before  judgment,  as  well  where  his  effects  are  reached  by  garish- 
ment,  as  where  levied  on  and  taken  into  the  officer's  possession.^ 
This  right  is  a  privilege  accorded  by  law  to,  and  not  a  duty  en- 
joined upon,  the  defendant,  and  the  plaintiff  cannot  complain  if 
it  be  not  exercised.^ 

§  314.  In  taking  this  bond  the  officer  is  not  to  be  regarded  as 
the  agent  of  the  plaintiff,  so  as  to  render  the  plaintiff  responsible 
for  his  neglect  of  duty.  Therefore,  where  the  officer,  without 
levying  the  attachment,  suffered  the  defendant,  without  the  plain- 
tiff's knowledge,  to  execute  a  bond,  with  surety,  to  pay  the  debt; 
which  was  considered  not  to  be  in  conformity  to  the  statute  gov 
erning  the  case  ;  the  court  considered  the  officer  as  rather  the 
agent  of  the  obligors  in  the  bond,  and  that  the  plaintiff  was  en- 
titled to  his  recourse  on  the  bond  as  a  go^d  common-law  bond, 
and  that  the  obligors,  if  injured  by  the  act  of  the  officer,  should 
look  to  him  for  redress.* 

1  Garrett  c  Tinnen,  7  Howard  (Mi.),  465.  See  Childress  v.  Fowler,  9  Arkansas,  159; 
Gilltaspie  I'.  Clark,  1  Tennessee,  2. 

2  Leccsne  r.  Cottin,  10  Martin,  174. 

'  Watson  V.  Kennedy,  8  Louisiana  Annual,  280. 
*  Cook  V.  Boyd,  16  B.  Monroe,  556. 

15  [225] 


§  317  BAIL   AND   DELIVTRY   BOJTOS.  [ciIAl'.  XFH 

§  31').  'Wljcro  an  attachment  issues  against  two  joint  debtors, 
arul  their  joint  and  separate  efTects  are  attached,  it  was  held  hy 
the  United  States  Circuit  Court  of  the  District  of  Cohimbia,  that 
one  of  them  could  not  appear  and  give  bail  to  discharge  his 
separate  effects,  unless  bail  and  appearance  were  entered  for 
both.i 

§  310.  If  the  statute  requires  more  than  one  surety,  and  only 
one  is  given,  the  obligurs,  when  sued  on  the  bond,  cannot  object 
to  its  validity  on  that  account ;  for  the  plurality  of  sureties  is  for 
the  benefit  of  the  creditor,  and  he  may  dispense  with  more  than 
one,  without  invalidating  the  instrument.* 

§  31G  a.  If  there  be  no  statute  authorizing  it,  the  court  has  no 
power  to  order  new  sureties  to  bo  given  in  such  a  bond,  on  the 
ground  that  those  first  taken  have  become  insolvent.  The  law  is 
coiujdied  with  by  the  giving  of  the  bond,  without  reference  to  the 
subsequent  ability  of  the  sureties  to  respond  to  its  obligation.* 

§  317.  In  Kentucky,  Illinois,  and  Mississippi,  from  the  time  of 
the  execution  of  the  bond,  the  cause  ceases  to  be  one  of  attach- 
ment, and  proceeds  as  if  it  had  been  instituted  by  summons;* 
and  in  South  Carolina  and  Georgia,  where  the  statute  does  not 
declare  that  the  execution  of  the  bond  shall  have  the  effect  of  dis- 
solving the  attachment,  it  is  held,  nevertheless,  that  it  has  that 
effect.'''  In  Louisiana,  Article  2.50  of  the  Code  of  Practice  is  as 
follows:  '"The  defendant,  if  he  appear,  either  in  person  or  by  his 
attorney,  may,  in  every  stage  of  the  suit,  have  such  attachment 
set  aside,  by  delivering  to  the  sheriff  his  obligation  for  the  sum, 
exceeding  V)y  one  half  that  which  is  demanded,  with  the  surety  of 
a  good  and  solvent  person,  residing  within  the  jurisdiction  of  the 
court  where  the  action  is  brought,  that  he  will  satisfy  such  judg- 
ment as  may  be  rendered  against  him  in  the  suit  pending."  Under 
this  provision  it  was  Jicld,  that  a  defendant  executing  the  obliga- 

1  Magee  v.  Callan,  4  Cranch,  C.  C.  251. 

2  Ward  1-.  Wliitney,  3  Sanford,  Sup.  Ct.  399 ;  8.  c.  4  Selden,  442. 

8  Dudley  v.  Goodrich,  16  Howard  Pract.  R.  189 ;  Ilartford  Quarry  Co.  v.  Pendleton, 
4  Abbott  Pract.  K.  460. 

*  Harper  v.  Bell,  2  Bibb,  221  ;  People  r.  Cameron,  7  Illinois  (2  Gilman),  468  ;  Philips 
r.  Hincs,  33  Mississippi,  163. 

&  Fife  V.  Clarke,  3  M'Cord,  347 ;  Reynolds  i-.  Jordan,  19  Georgia,  i36.  See  McIHil- 
lan  V.  Daiij,  18  California,  339.    . 


CHAP.  XIII.]  BAIL   AND   DELIVERY   BONDS.  §  318 

tion,  rendered  himself  liable  to  a  judgment  in  personam,  whether 
he  was  served  with  process  or  not.^ 

But  under  many  attachment  systems  this  bond  may  be  given  by 
third  persons,  without  the  joinder  of  the  defendant  with  them  ; 
and  in  such  case  their  execution  of  the  bond  is  neither  in  fact  nor 
in  law  an  appearance  by  the  defendant  to  the  action,  nor  does  it 
authorize  the  supposition  that  he  had  any  kno\Vledge  or  notice  of 
it,  or  any  opportunity  to  appear  and  defend  it.^ 

§  318.  In  Mississippi,  the  court  seemed  to  consider  that  the 
execution  of  the  bond  released  any  technical  oVyections  to  the  pre- 
liminary proceedings  ;^  while  by  the  Supreme  Court  of  the  United 
States,  and  that  of  Missouri,  it  was  held,  that  thereafter  the  de- 
fendant could  not  take  any  exception  to  the  attachment,  or  to  the 
regularity  of  the  j)roc(.'edings  under  it.*  In  Louisiana,  however,  a 
dilVcriMit  rule  prevails.  There,  under  the  statute  cited  in  the  next 
preceding  section,  when  property  is  seized  under  an  attachment, 
and  the  defendant  is  not  served  with  process,  the  court  is  required 
to  appoint  an  attorney  to  represent  him  ;  and  it  was  held,  to  be 
admissible  for  the  attorney  so  appointed,  to  show  that  the  property 
attaciied  was  not  the  defendant's,  and  that,  therefore,  the  court 
had  no  juri.sdiction  of  the  action.^  Afterwards,  it  was  decided 
that  the  defendant  himself,  after  giving  bond,  might  contest  the 
truth  of  the  allegation  on  which  the  attachment  issued,  in  order 
to  procure  the  diss(jlution  of  the  attachment;  and  this  expressly 
on  the  ground  that  it  was  necessary  to  relieve  himself  and  his 
surety  from  the  obligation  of  the  bond.^  Subsequently  the  court 
further  decided  that  the  obligors  in  a  bond  of  this  description,  to 
u-huh  the  attachment  difendant  was  not  a  party,  might,  when  sued 
upon  it,  set  up  as  a  defence,  that  the  property  was  not  the  defend- 
ant's, and  that  he  had  not  been  served  with  process,  and  that, 
therefore,  the  judgment  against  him  was  a  nullity.'^  And  in  Ar- 
kansas it  was  hehJ,  that  the  execution  of  the  bond  did  not  pre- 

1  Ratlibone  v.  Ship  Lon.lon,  6  Louisiana  Annual,  439;  Kendall  v.  Brown,  7  Ibid. 
668;  Love  r.  Voorhics,  1.'}  Iliid.  349. 
-  Clark  r.  Bryan,  16  Maryland,  171. 

*  Wiiarton  v.  Con<,'er,  9  .Smrdes  &  Marshall,  510. 

*  Barry  n.  Foylcs,  1  Peters,  311  ;  Payne  v.  Snell,  3  Misfiouri,  409. 

»  Schlater  v.  Broaddus,  3  Martin,  Jf.  9.  321  ;  Oliver  v.  Gwin,  17  Louisiana,  28. 
c  Paihles  i-.  Roux,  14  Louisiana,  82;  Myers  i;.  Perry,  1  Louisiana  Annual,  372. 
Kendall  v.  Brown,  7  Ibid.  668. 
■  Quine  v.  Mayes,  2  Hobinson  (La.),  510 

[227] 


§  319  15AIL    AM)    I>KLl\l.i;V    \\i>S\>i>.  [ciiAl'.  Mil. 

cludo  the  defeiulant  from  interposing  pleas  in  abatement  founded 
on  irregularities  in  the  proceedings.^ 

§  319.  In  New  York,  a  similar  view  was  entertained,  in  an  ac- 
tion on  a  bond,  conditioned  to  pay  tbe  plaintilT  in  the  attachment 
the  amount  justly  due  and  owing  to  him  by  the  defendant,  at  the 
time  the  pUiiiitilf  became  an  attaching  creditor,  on  account  of  any 
debt  claimed  and  sworn  to  by  the  plaintitT,  with  interest,  costs,  Ac. 
The  action  was  against  the  surety  in  the  bond,  and  the  declaration 
set  forth  tin*  allidavit  on  which  the  attachment  issued,  the  issuing 
of  the  writ,  the  attachment  defendant's  application  to  the  judge  to 
discharge  the  warrant,  and  that,  for  the  purpose  of  procuring  such 
discharge,  the  bond  sued  on  was  executed  ;  and  concluded  with 
an  averment  of  the  indebtedness  of  the  attachment  defendant  to 
the  plaintilT.  The  question  presented  was,  whether  the  affidavits 
on  which  the  attachment  issued  were  suflicient  to  authorize  tho 
issuing  of  the  writ.  It  was  decided  that  they  were  not,  and  there- 
fore, that  the  proceedings  in  the  attachment  were  void  ;  and  such 
being  the  case,  that  the  bond  was  also  void.- 

This  case  was  under  the  Revised  Statutes  of  New  York,  where 
the  affidavit  for  an  attachment  was  the  fouiulalion  of  the  jurisdic- 
tion ;  and  the  impeachment  of  its  sufliciency  assailed  the  juris- 
diction of  the  court  in  the  attachment  suit.  The  decision  was, 
that,  as  there  was  no  jurisdiction  of  tho  suit,  the  bond  could  not 
be  enforced. 

But  where,  as  under  the  New  York  Code  of  Procedure,  tho 
attachment  is  not  process  by  which  the  suit  is  conuuenced,  but 
merely  a  provisional  remedy,  it  was  held,  that  the  statements  in 
the  affidavit  on  which  it  issued  are  not  jurisdictional  facts  ;  that 
the  attachment  is  not  void  if  those  statements  are  insufficient ; 
and  that  therefore  tho  sufficiency  and  truth  of  those  statements 
cannot  be  inquired  into  in  an  action  on  a  bond  given  to  secure  the 
payment  of  such  judgment  as  might  be  recovered  in  the  action  in 
which  the  attachment  was  issued.^  Much  less  can  the  attachment 
defendant,  in  an  action  on  such  bond,  object  to  the  regularity  of 
the  proceedings  in  the  attachment  suit.* 

1  Childress  v.  Fowler,  9  Arkansas  (4  English),  159;  Delano  v.  Kennedy,  5  Ibid.  457 
8  Cadwell  v.  Colgate,  7  Barbour,  253. 
8  Criiyt  V.  Phillips,  16  Howard  Pract.  R.  120. 
♦  Dunn  V.  Crocker,  22  Indiana,  324. 
[228] 


CHAP.  Xm.]  BAIL   AND   DELI^^:RY   BONDS.  §  321 

lu  California,  it  was  held,  that  in  an  action  on  such  a  bond,  no 
proof  was  necessary  of  the  preliminary  proceedings  connected  with 
or  preceding  the  levy  ;  for  the  admission  of  the  levy,  contained  in 
the  bond,  is  enough.^ 

§  320.  But  in  a  suit  on  such  a  bond,  is  the  plaintiff  bound,  as 
was  done  in  the  case  just  cited,  to  show  in  his  declaration,  or 
otherwise,  the  facts  necessary  to  give  jurisdiction  to  the  officer 
who  i.ssued  the  attachment,  or  that  the  case  was  one  in  which  an 
attachment  might  be  issued  according  to  tlie  statute  ?  This  ques- 
tion was  passed  upon  by  the  New  York  Court  for  the  Correction 
of  Errors,  in  the  negative.  Chancellor  Walworth,  in  delivering 
his  opinion,  which  was  almost  unanimously  sustained  by  the  court, 
said :  ''  I  urn  not  aware  of  any  principle  of  the  common  law  which 
requires  the  obligee  in  such  a  bond,  when  he  brings  a  suit  thereon 
against  the  obligors,  to  do  anything  more  in  his  declaration  than 
to  state  the  giving  of  the  bond  by  the  defendants,  and  to  assign 
proper  breaches  of  the  condition  to  show  that  the  bond  has  be 
come  forfeited  ;  and  to  enable  the  jury  to  assess  the  damages  upon 
such  brt'iiches,  as  re(jiiired  l)y  the  statute  relative  to  suits  upon 
bonds  other  tban  for  the  payment  of  money.  And  where  the 
execution  of  the  bond  is  admitted  or  proved  upon  the  trial,  and 
the  Ijreach  of  the  condition  thereof  is  also  proved,  the  onus  of 
establishing  the  fact  that  the  bond  was  improperly  obtained,  by 
coercion  or  otherwise,  as  by  an  illegal  and  unauthorized  imprison 
ment  of  the  dcfen^dants,  or  in  consequence  of  an  illegal  detention 
of  their  goods  under  color  of  an  attachment  granted  by  an  officer 
who  had  no  authority  to  issue  the  same,  is  necessarily  thrown 
upon  them."^ 

§  321.  In  Louisiana,  under  the  Article  above  quoted,  it  is  held, 
that  after  the  giving  of  such  a  bond,  the  property  attached  is  no 
longer  under  the  control  of  the  court.  There,  cotton  was  at- 
tached, and  released  on  a  bond  being  given ;  and  afterwards  a 
third  party  intervened  and  claimed  the  cotton  to  be  his  ;  but  the 
court  refused  to  hear  evidence  or  entertain  the  intervention,  be- 
cause the  defendant  had  bonded  the  cotton.  The  Supreme  Court 
fiustained  this  decision,  holding  the  property  to  be  no  longer  under 
the  control  of  the  court ;  that  the  bond  was  a  substitute  for  the 

1  McMillan  v.  Dana,  18  California,  339.         ^  Kanouse  r.  Dormedy,  3  Denio,  567. 

[229] 


§  323  BAIL   AND  DELIVERY   BONDS.  [CHAl'.  MIL 

property ;    and   that   the  iiiterveuor  must  look  to  the   property 
itself.' 

§  322.  Such  hond  is  availuhle  to  the  plaintiff  only,  for  the  satis- 
factiou  of  such  judgment  as  he  may  obtain  against  the  defendant. 
If  he  fail  to  obtain  a  judgment,  the  l)ond  is  discharged.  Third 
parties,  claiming  the  attaclied  property,  can  have  no  recourse 
upon  the  bond,  tliere  being  no  privity  between  them  and  the 
obligors.^  And  the  judgment  obtained  against  the  defendant, 
where  he  is  not  a  party  to  the  bond,  must  be  a  valid  judgment,  in 
order  to  sustain  an  action  on  tlie  bond.  If  the  judgment  be  taken 
without  any  jurisdiction  in  the  court,  no  action  can  be  maintained 
on  th(3  bond  fur  its  satisfaction.' 

§  322  a.  In  order  to  a  recovery  upon  such  a  bond  it  is  not 
necessary  that  the  jmlgment  against  the  deft.Mjdant  in  the  attach- 
ment suit  should  express  that  it  is  with  privilege  on  the  property 
attached.  The  obligors  undertake  to  pay  any  judgment  which 
may  be  recovered  against  the  defendant ;  and  as  the  execution  of 
the  bond  authorizes  a  j)ersonal  judgment  against  him,  it  is  not 
requisite  that  the  judgment  siiould  make  reference  to  the  attach- 
ment, in  order  to  give  a  right  of  action  on  the  bond.* 

§  323.  Tiie  obligution  of  the  l)ond  cannot  l)e  discharged  l»y  a 
surrender  of  the  jjropcrty  attached.''  Nor  can  the  obligors,  when 
sued  thereon,  defend  themselves  by  showing. that  the  property 
was  not  the  defendant's  when  it  was  attached  ;  *  or  that  it  was  not 
subject  to  attachment ;'  or  that  no  property  was  attached  ;  ^  or  that 
the  grounds  for  obtaining  the  attaclunent  were  insufficient.*  Nor 
are  they  discharged  by  the  arrest  and  commitment  of  the  defend 

1  Dorr  v.  Kershaw,  18  Louisiana,  57  ;  Boal  c.  Alexander,  1  Robinson  (La.),  277  ;  8.  O 
7  Ibiil.  349  ;  Benton  v.  Roberts,  2  Louisiana  Annual,  243 ;  Monroe  v.  Cutter,  9  Dana, 
93  ;  McRac  v.  Austin,  9  Louisiana  Annual,  360.  Sec  McMillan  i;.  Dana,  18  California, 
339. 

2  Dorr  r.  Kershaw,  18  Lotiisiana,  57  ;  Beal  v.  Alexander,  7  Robinson  (La.),  349. 

8  Clark  V.  Bryan,  16  Maryland, 171. 

*  Love  V.  Voorhies,  13  Louisiana  Annual,  549. 
6  Dorr  V.  Kershaw,  18  Louisiana,  57. 

6  Beal  V.  Alexander,  1   Robinson  (La.),  277;  Hazelrigg  v.  Donaldson,  2  Metcalfe 
(Ky.),  445. 
^  MeMillan  v.  Dana,  18  California,  339. 

*  Frost  V.  "White,  14  Louisiana  Annual,  140. 

9  Hazelrigg  v.  Donaldson,  2  Metcalfe  (Ky.),  445. 

[230] 


s  p.- 


CUAl'.  XIII.]  BAIL   AND   DELIVERY   BONDS.  ^  oLO 

ant,  uiiJei-  a  ea.  sa.  issued  by  the  plaintiff,  in  the  same  action, 
after  the  condition  of  the  bond  is  broken.^  Nor  can  they  object 
to  the  amount  of  the  judgment  recovered  in  the  original  suit.^ 
Nor  will  ii  avail  them  as  a  defence,  that,  after  judgment  and 
«xecution  were  obtained  against  the  defendant,  they  pointed  out 
to  the  plaintiff  property  of  the  defendant,  out  of  which  he  could 
make  his  claim,  ana  at  the  same  time  tendered  him  money  to 
defray  the  expenses  and  charges  of  the  proceeding.^  Where  obli- 
gors in  such  a  l)oud  were  sued  thereon,  and  defended  themselves 
upon  the  ground  tlmt  an  apj^al  had  been  prayed  and  allowed 
li-om  the  judgment  m  xhe  attachment  suit,  it  was  held  to  be  no 
defence,  and  that  it  tshould  ha»e  been  shown  that  the  appeal  was 
pending  and  undetermiiu'd.' 

8  324.  In  Arkansas  it  is  held,  ihai  the  cureties  in  a  bail-bond 
in  attachment,  may  be  sued  theieoi.  \vlthout  issuing  execution 
against  the  prnicipal.  It  is  sufficient  to  avtr  the  judgment  against 
him,  and  its  non-payment.^ 

§  325.  In  Tennessee,  in  an  action  on  such  a  boad,  the  plaintiff 
entered  a  nolle  prosequi  as  to  one  of  ihe  principrils  \n  the  bond, 
and  took  judgment  against  the  other  principal  and  ti.e  sureties ; 
and  the  court  held,  that  the  judgment  was  erroneous,  because  the 
voluntary  discharge  of  one  of  the  principals  by  the  i,la:ntiff 
operated  as  a  discharge  of  the  sureties  from  the  obligation  of 
their  bond.^ 

§  326.  In  Louisiana,  a  case  arose,  not  strictly  of  the  nature  of 
those  we  are  now  consideiing,  but  bearing  such  resemblance  to 
them  as  to  be  properly  noticeable  here.  A  steamboat,  owned  by 
several  persons,  was  attached  for  the  debt  of  one  of  the  owners. 
Tlie  other  owners,  to  relieve  the  boat  from  the  attachment,  came 
forward  and  filed  their  claim  for  the  three  fourths  of  the  vessel, 
offering  at  the  same  time  to  give  security  to  account  for  such  part 
as  should  be  found  to  belong  to  the  defendant  upon  a  final  ad- 
justment of  their  respective  claims  and  accounts,  upon  a  due 
appraisement  and  sale  of  the  interest  and  share  of  the  defendant; 
and  the  court  ordered  the  boat  to  be  delivered  to  them,  on  their 

1  Murrav  ..  Shearer,  7  Cashing,  333.  *  Poteet  ..  ^^«^\^«  f ll^.^'j-l.^f.^^ 

"-  MoranVe  ..  E.lwards,  1  E.  D.  Smith,  414.    ^  Lincoln  r.  Beebe,  ll/^';^"^'  ''^^' 
.  iill  r.  Merle,  10  Louisiana.  108.  «  Harris  ..  Taylor,  3  '^m^d   o^- 


§  327  a  BAIL   AND   DELIVERY   BONT)S.  [CHAP.  XTH. 

executing  1)0U(1,  witli  security,  "  to  abide  the  judgment  of  the 
court  in  the  premises."  Judgment  was  rendered  against  the 
defendant,  only  a  part  of  which  was  satisfied  out  of  the  proceeds 
of  the  sale  of  his  share  in  the  boat,  and  the  plaintiff  sued  the 
parties  to  the  bond  to  recover  the  balance.  But  the  court  decided, 
that  the  bond  must  be  understood  in  relation  to  their  obligation 
to  account  for  the  share  of  their  coproprietor  ;  and  that,  should  it 
remain  doubtful,  from  the  manner  in  which  tiie  order  of  the 
coiirt  and  the  l)ond  were  worded,  whether  the  ol)ligors  intended 
anything  more  tlian  making  themselves  responsible  for  the  share 
of  the  defendant,  justice  commanded  to  put  upon  the  bond  tlio 
most  equitable  construction,  and  to  reject  an  interpretation  which 
would  tend  to  make  them  pay  the  defendant's  debt,  not  only  out 
of  his  share,  but  out  of  their  own.^ 

§  327.  II.  Driircn/  Bowh.  This  description  of  instrument  is 
variously  styled  Helivery,  Forthcoming,  or  Replevy  Bond.'-^  It  is 
usually  conditioned  for  the  delivery  of  the  property  to  the  ofTicer, 
cither  to  satisfy  the  execution  which  the  j)laintilT  may  obtain  in 
the  cause,  or,  when  and  where  the  court  may  direct.  Sometimes 
the  alternative  is  embraced,  of  the  delivery  of  the  property  or  the 
satisfiiction  of  the  judgment  recovered  in  the  action.  Such  a  bond 
is  no  part  of  the  record  in  a  cause,  and  cannot  be  looked  to,  to 
explain  or  contradict  the  sherilT's  return.^ 

§  827  a.  Though  a  bond  of  this  description  be  given  where  not 
authorized  by  statute,  or  in  terms  variant  from  those  prescribed, 
yet  it  is  not  therefore  necessarily  invalid  ;  but  it  will  be  good  as 
a  common  law  bond,  where  it  does  not  contravene  public  policy, 
nor  violate  a  statute.* 

1  Nancarrow  v.  Yonng:,  6  Martin,  662. 

2  In  M'Rae  v.  M'Loan,  3  rorter,  138,  Hitchcock,  J.,  said  in  delivering  the  opinion 
of  the  court :  "  The  term  replevy,  in  its  fjcncral  sense,  inchides  every  return  of  property 
levied  on,  for  whatever  cause,  and  under  wliatever  conditions  the  same  may  be  subject 
to,  whether  the  lien  is  continued  or  dischar<;cd  ;  and  the  question  of  lien  or  no  lien  de- 
pends more  upon  the  nature  of  the  stipulations  entered  into  in  the  bond,  than  upon  the 
particuhir  circumstances  which  may  attend  the  case.  All  our  injunction  and  writ  of 
en'or  bonds  are  replevy  bonds  ;  yet  there  is  no  lien  retained  on  the  pro|)erty  attached, 
the  conditions  being  to  pay  and  satisfy  the  judgment  or  decree  of  the  court  whenever 
made." 

8  Kirksey  v.  Bates,  1  Alabama,  303. 

*  Shcppard  v.  Collins,  12  Iowa,  570.     See  Morse  v.  Hodsden,  5  Mass.  314 ;  Bamis  v. 
Webster,  16  Missouri,  258;  Waters  v.  Riley,  2  Harris  &  Gill,  305. 
r232] 


CHAP.  Xm.]  BAIL   AND   DELI\T:RY   BONDS.  §  329 

§  327  h.  It  seems  that  this  bond  may  be  taken,  as  well  where 
the  attachment  is  served  only  by  garnishment,  as  where  tangible 
property  is  levied  on.  It  was  so  held  in  Iowa,  under  a  statute  in 
these  words :  "  The  defendant  may  at  any  time  before  judgment 
dischar<re  the  property  attached,  or  any  part  thereof,  by  giving 
bond,  with  surety  to  be  approved  by  the  sheriff,  in  a  penalty  at 
least  double  the  value  of  the  property  sought  to  be  released, 
conditioned  that  such  property,  or  its  estimated  value,  shall  be 
delivered  to  the  shcrifT,  to  satisfy  any  judgment  which  may  be 
obtaiiie<l  against  the  defendant  in  that  suit,  within  twenty  days 
after  the  rendition  thereof."  ^ 

§  328.  No  set  form  of  words  is  necessary  to  make  a  valid  bond 
of  this  description.  Therefore,  where  a  writing  was  given,  in  the 
nature  of  a  condition  to  a  penal  bond,  though  no  bond  preceded 
the  condition,  it  was  held  to  be  sufficient,  on  the  following  grounds: 
*'  It  states  what  act,  if  performed,  shall  have  the  effect  of  render- 
ing the  supposed  bond  void.  It  implies  an  agreement  on  the  part 
of  the  ol)ligors  for  the  performance  of  that  act.  It  in  effect 
stii)ulates  that  the  property  attached  shall  be  forthcoming  when 
ordered  by  the  court  to  be  returned  to  its  custody.  It  shows  that 
a  duty  had  devolved  on  the  persons  executing  the  instrument, 
and  imports  an  undertaking  fur  the  performance  of  that  duty. 
Although  it  is  unskilfully  drawn,  and  has  omitted  an  essential 
part  of  all  i»enal  obligations,  yet  we  think  an  action  of  covenant 
can  be  maintained  upon  it.  Any  other  construction  would  violate 
the  obvious  intention  and  understanding  of  the  parties."  ^ 

§  329.  The  addition  to  the  bond  of  terms  not  required  by  law- 
will  not  vitiate  it  as  a  statutory  bond,  or  bar  the  prescribed  reme- 
dies on  it.  Thus,  where  the  statute  required  a  bond  "  conditioned 
that  the  property  shall  be  forthcoming  to  answer  the  judgment 
that  may  be  rendered  in  the  suit,"  and  the  bond  given,  after 
reciting  the  attachment,  and  that  the  obligors  claimed  to  be  the 
owners  of  the  property  attached,  was  conditioned  that  if  the 
obligors  should  fail  to  substantiate  their  claim  and  should  render 
up  and  have  forthcoming  the  property,  &c. ;  it  was  held,  that  the 
addition,  "  if  the  obligors  should  fail  to  substantiate  their  claim," 
did  not  affect  the  character  of  the  bond,  and  that  it  might  bo 

1  Woodward  v.  Adams,  9  Iowa,  474.  "  Yocum  v.  Barnes,  8  B.  Monroe,  496. 

[233] 


§  331  BAIL   AND  DELIVERY  BONDS.  [CIIAP.  XIIl 

proceeded  on  in  the  same  manner  as  if  that  addition  had  not  been 
mado.^ 

§  330.  This  bond  diflers  from  the  contract  of  baihnont  of  at- 
tached ])roj)orty,  prevalent  in  Now  Eiighmd  and  New  York,  to  bo 
treated  of  in  a  subsequent  chapter,  —  1.  In  deriving  its  existence 
from  statute,  and  not  from  practice ;  2.  In  being  a  specialty,  in- 
stead of  a  simple  contract ;  3.  In  the  officer  being  under  legal 
obligation  to  release  the  property  from  actual  custody,  upon 
sufficient  security  being  given  ;  4.  In  discharging  the  officer  from 
liability  for  the  property,  at  least  unless  he  were  guilty  of  impro- 
priety in  takiiij:  insufficient  security  ;  5.  In  being  recognized  and 
proceeded  ujioii  in  the  courts  as  a  part  of  the  cause  ;  0.  In  being 
a  contract  which  the  plaintiff  may  enforce,  for  the  satisfaction  of 
his  judgment, 

§  331.  It  diffi3rs,  too,  from  a  bail-bond,  in  that  it  does  not 
discharge  the  lien  of  the  attachment ;  since  tlie  very  object  of  the 
bond  is  to  insure  the  safe  keeping  and  faithful  return  of  the 
property  to  the  officer,  if  its  return  should  be  required.^  It  fol- 
lows, therefore,  that  after  property  is  thus  bonded,  it  cannot  be 
seized  under  another  attachment,  or  under  a  junior  execution, 
either  against  tlie  attachment  debtor,  or  a  third  person  claiming 
it  adversely  to  the  debtor  and  tlie  creditor  ;  for  to  hold  otherwise 
would  put  it  in  the  power  of  a  stranger  to  the  attachment  suit, 
by  a  levy  and  sale,  to  cause  a  forfeiture  of  the  condition  of  the 
bond.^  And  this,  too,  though  the  party  giving  the  bond  take  the 
property  into  anotlier  iState ;  for  he  is  considered  to  have  a  quali- 
fied property  in  the  thing,  which  the  courts  of  every  State  must 
respect,  wherever  acquired.* 

1  PuvccU  V.  Steele,  12  Xllinois,  93;  Shcppard  v.  Collins,  12  Iowa,  570. 

2  Gray  r.  Perkins,  12  Smedes  &  Marshall,  622;  M'Rac  v.  M'Lean,  3  Porter,  138, 
Eivcs  I'.  Wilborne,  6  Alabama,  45;  Evans  v.  King,  7  Missouri,  411  ;  People  f.  Cam- 
eron, 7  Illinois  (2  Gilinan),  468 ;  Ilagan  i-.  Lue;xs,  10  Peters,  400 ;  Boyd  r.  Buckingham, 
10  Hunipiireys,  434.  Sed  contra,  Schuyler  i;.  Sylvester,  4  Butcher,  487  ;  Austin  v.  Biir- 
gctt,  10  Iowa,  302. 

8  Rives  V.  AVilborne,  6  Alabama,  45;  Kane  v.  Pilcher,  7  B.  Monroe,  651.  In  Jones 
V.  Peasley,  3  G.  Greene,  53,  it  was  held  by  the  Supreme  Court  of  Iowa,  that  a  bond 
conditioned  "  that  the  attached  property,  or  its  appraised  value,  shall  be  forthcoming 
to  answer  the  judgment  of  the  court,"  discharges  the  property  from  the  lien  of  the  at- 
tachment, and  leaves  it  subject  to  a  subsequent  attachment  for  the  defendant's  debts, 
and  that  the  obligors  cannot  defend  against  the  bond,  because  the  property  was  subse- 
quently attached  by  other  creditors. 

*  Gordon  v.  Johnston,  4  Louisiana,  304. 
[234] 


CHAP.  Xra.]  BAIL   AND  DELIVERY  BONDS.  §  335 

§  332.  By  executing  such  a  bond,  the  defendant  is  held  to  have 
acknowledged  notice  of  the  suit,  and  to  be  bound  to  enter  an 
appearance,  or  be  liable  to  be  proceeded  against  as  in  case  of 
personal  service  of  process.^ 

§  333.  This  bond  cannot  be  executed,  so  as  to  constitute  an 
eifcctive  and  reliable  security  to  the  officer  or  the  plaintiff,  by  any 
party  not  thereto  authorized  by  law.  If  executed  by  one  not  so 
authorized,  it  will  not  be  sustained,  either  as  a  statutory  or  com- 
mon law  bond.^ 

§  334.  TVhere  the  bond  calls  for  the  delivery  of  the  property  at 
a  specified  place,  no  demand  is  necessary.^  When  the  property  is 
to  be  delivered  "  when  and  where  the  court  shall  direct,"  an  order 
of  court  for  its  delivery  is  necessary  to  render  the  obligors  liable. 
The  judgment  of  the  court  against  the  defendant  in  the  attach- 
ment suit,  and  an  execution  issued  to  the  sheriff,  do  not  constitute 
an  order  to  the  obligors  to  deliver  the  property  at  a  given  time 
and  place.'* 

Wlierc  the  bond  is  for  the  delivery  of  the  property  within  a 
stipulated  time  after  the  rendition  of  a  judgment  ui  favor  of  the 
plaintilf  in  the  attacliment  suit,  it  is  not  necessary,  to  sustain  an 
action  on  the  bond,  that  an  order  should  be  made  that  the  judg- 
ment should  be  a  lien  on  the  attached  property,  or  directing  the 
sale  of  the  property.  The  right  of  action  is  complete  upon  the 
failure  to  deliver  the  property  within  the  stipulated  time.^ 

§  335.  The  surety  in  any  such  bond  may  exonerate  himself 
therefrom,  by  delivering  the  property  to  the  officer,  at  any  time 
before  judgment  is  rendered  against  him  on  the  bond.^  This 
delivery  must  be  an  actual  one,  —  that  is,  the  property  must  be 
brought,  and  pointed  out,  and  offered  to  the  officer.  Therefore, 
wliere  a  forthcoming  bond  was  given  for  a  slave,  and  the  principal, 
on  the  day  the  slave  was  to  be  delivered,  met  the  officer  crossing 
the  street  rapidly,  and  said  to  him,  "  Here  is  the  boy  ;  I  have 

1  Wilkinson  r.  ratterson,  6  Howard  (Mi.),  193. 

2  Cummins  i-.  Gray,  5  Stewart  &  Porter,  397 ;  Sewall  v.  Franklin,  2  Porter,  493. 
8  MitchL-ll  I'.  Merri'u,  2  Blackford,  87. 

♦  r.rothcrton  r.  Thomson,  11  Missouri,  94. 
6  Wavnaiit  r.  Dodson,  12  Iowa,  22. 

6  Rea-^an  v.  Kitchen,  3  Martin,  418 :  Hansford  v.  Perrin,  6  B.  Monroe,  595. 

[235] 


§  338  BAIL   AND   DFLIVERY    BOXDS,  [CHAP.  XIIL 

brought  liim  to  release  J.  on  that  bond"  ;  and  tlie  officer  replied, 
"  Very  well  "  ;  but  the  slave  was  not  pointed  out,  and  the  officer 
did  not  sou  him  ;  it  was  held  to  be  no  proper  delivery.* 

§  33G.  The  signers  of  sucli  a  l)ond  cannot  object  that  it  is  not 
their  deed,  l)ecause  it  was  written  over  tlioir  signatures  dehvered 
to  the  officer  in  blank,  instead  of  their  signatures  being  affixed 
after  the  instrument  was  written.  In  such  case  the  officer  acts  as 
the  agent  of  the  ol)ligors  in  filling  uj)  the  writing,  and  may  prove 
his  agency  ;  and  if  he  i^e  dead,  his  declarations  in  relation  to  it 
may  be  given  in  evidence,  as  part  of  the  res  gestcv?  In  the  case 
in  which  tliis  was  decided,  all  the  parties  to  the  paper  wrote  their 
names  ui)on  it,  with  tlic  intention  tiiat  it  should  be  filled  up  as  a 
forthcoming  bond,  and  delivered  it  to  the  officer  for  the  i)urpose 
of  being  so  filled  iip.  Hut  when;  the  pajxjr  is  signed  by  a  surety 
with  an  understanding  that  others  are  to  sign  it  with  him,  and 
it  is  delivered  without  their  signatures  being  obtained,  the  surety 
will  not  be  bound.  This  was  so  held  in  Louisiana,  where  a  surety 
signed  a  bond  in  which  the  names  of  three  |>rincipals  were  written, 
only  one  of  whom" signed  it;'*  and  in  Mississipjn,  where  the  surety 
signed,  under  a  representation  that  two  others  would  become  co 
sureties  with  him,  and  the  bond  was  delivered  without  their  signa 
turcs  having  been  obtained.^ 

§  337.  The  seizure  of  property  under  attachment,  upon  which 
the  party  having  it  in  possession  has  a  lien,  cannot  devest  the 
lieu.  And  if  such  party  release  it  by  giving  bond,  it  seems  he 
will  be  responsible  on  the  bond  for  no  more  than  the  balance 
which  may  remain  in  his  hands  after  paying  himself  the  amount 
due  him.^ 

§  338.  In  Kentucky,  under  their  practice  of  attachment  in 
chancery,  it  was  held,  that  suit  on  a  l)ond  for  the  forthcoming  of 
attached  property  was  prematurely  ))rought,  where  the  Chancellor 
had  not  disposed  of  the  case,  and  remitted  the  party  to  his  remedy 

1  Pogue  V.  Joyner,  7  Arkansas  (2  English),  462. 

2  Yocum  V.  Barnes,  8  B.  Monroe,  496. 

*  Clements  v.  Cassilly,  4  Louisiana  Annual,  380.     See  Bean  v.  Parker,  17  Mass.  591  , 
Wood  V.  Washburn,  2  Pick.  24. 

*  Sessions  v.  Jones,  6  Howard  (Mi.),  123.     See  Crawford  v.  Foster,  6  Georgia,  202. 
6  Canfield  v.  M'Laughlin,  10  Martin,  48. 

[236] 


CHAP.  XIII.]  BAIL   AND   DELIVERY   BONDS.  8  339 

on  the  boud.i  In  the  same  State  it  was  held,  in  relation  to  such 
a  bond,  that  the  surety  ought  not  to  be  proceeded  against  alone, 
where  the  principal  was  within  reach  of  the  process  of  the  court.^ 
And  in  Louisiana,  the  surety  cannot  be  made  liable,  until  restora- 
tion of  the  property  or  payment  of  the  bond  has  been  demanded 
of  the  priiicipaL^  But  it  is  not  necessary  tliat  a  demand  upon  the 
security,  or  notice  to  him  of  the  order  of  the  court  for  the  delivery 
of  tlie  property,  should  be  shown,  in  order  to  sustain  a  proceeding 
again^t  him  on  the  bond.* 

§  330.  In  an  action  on  a  bond  of  this  description,  the  obligors 
cannot  complain  that  the  penalty  in  it  is  not  as  large  as  the  law 
required  ; «  nor  is  it  competent  for  them  to  aver  that  the  property 
attached  was  not  the  defendant's,  but  belonged  to  a  third  person, 
who  took  it  into  his  possession,  whereby  they  were  prevented  from 
having  it  forthcoming  to  answer  the  judgment  of  the  court.  They 
are  estopped  by  the  bond  from  contesting  the  defendant's  right  to 
the  pro]>erty.  They  undertake  to  have  it  forthcomhig,  and  it  is 
their  duty  to  comply  with  their  obligation,  and  leave  it  to  the 
plaintilT  in  the  attachment  and  the  claimant  of  the  property  to 
litigate  their  rights ;  not  to  take  it  out  of  the  possession  of  the 
plaintitr,  and  put  it  into  that  of  an  adverse  claimant,  and  thus 
excuse  themselves  for  a  breach  of  their  covenant.^  Equally  are 
the  parties  to  such  a  bond  estopped  from  denying  the  admissions 
made  in  the  condition  of  the  bond,  or  controverting  their  exist- 
ence. Therefore,  where  a  bond  recited  the  issuing  of  an  attach- 
ment and  its  levy  on  the  property,  it  was  held,  that  the  obligors 

1  Hansford  v.  Pcrrin,  6  B.  Monroe,  595. 

*  Pasre  1-.  Lon};,  4  B.  Monroe,  121. 

'  Gootlmun  r.  Allen,  6  Louisiana  Annual,  371. 

*  Weed  V.  Dills,  .34  Missouri,  483. 

'  Jones  c.  M.  aiW  A.  Railroad  Co.,  5  Howard  (Mi.),  407. 

*  Sartin  i-.  Wier,  3  Stewart  &  Porter,  421 ;  Gray  v.  MacLcan,  17  Illinois,  404 ;  Dorr 
r.  Clark,  7  Miclii;:an,  310.  In  Iowa,  where  such  a  defence  is  allowed  by  statute,  it 
was  held  not  sufficient  to  aver  that  the  property  was  not  the  defendant's;  but  the  plea 
must  show  whose  it  was.  Blatchley  v.  Adair,  5  Iowa,  545.  In  Kentucky,  in  an  action 
on  a  bond,  the  undertaking  of  which  was,  "  that  the  defendant  S.  shall  perform  the 
jud^rmcnt  of  the  court  in  this  action,  or  that  the  undersigned  H.  will  have  the  seventy 
five  hojrs  attached  in  this  action,  or  their  value,  S412,  forthcoming  and  subject  to  the 
order  of  the  court  for  the  satisfaction  of  such  judgment";  it  was  held,  that  the  owner 
of  proi)erty,  attached  in  an  action  against  a  third  person,  who  gives  such  a  bond  in 
order  to  retain  his  possession,  is  not  thereby  precluded  from  asserting  his  claim  to  the 
property,  or  disputing  the  validitv  of  the  attachment.  Schwein't'.  Sims,  2  Metcalfe 
(Ky.),  209.     See  Halbert  v.  McCulloch,  3  Ibid.  456. 

[237] 


§  342  BAIL   AND   DELIVERY   BONDS.  [CHAP.  XIIL 

could  not,  in  an  action  on  the  instrument,  deny  that  an  attacli- 
mcnt  had  issued  and  l/een  levied.^  And  where  a  jnirty  gave  hund 
to  hold  attached  property  or  its  proceeds  sulycct  to  the  judgujent 
of  the  court,  it  was  held,  that  lie  could  not  set  up  as  a  defence 
against  the  bond,  that  the  sheriff  to  whom  it  was  given  had  no 
legal  or  equitable  interest  in  tlie  proj>erty.-  And  wliere  the  con- 
dition of  the  bond  was  the  delivery  of  the  attached  property  to 
the  sheriff,  in  the  event  of  a  judgment  being  rendered  against  the 
defendant,  it  was  held,  that  it  was  no  defence  to  a  surety  that  tlio 
judgment  against  the  defendant  did  not  order  the  property  to  bo 
sold.^ 

§  340.  "Where  statutory  provision  is  made  allowing  a  party  otlier 
than  the  defendant  to  retain  attached  property,  on  executing  a 
forthcoming  bond  therefor,  if  such  party  claim  to  be  the  owner  of 
the  property,  ho  must  nevertheless  return  it  to  the  officer,  and 
then  assert  his  claim.  He  cannot  set  up  his  ownership  as  a  de- 
fence to  an  action  on  the  bond.* 

§  341.    If  the  ol»ligors  in  the  bond  are  j)revented  by  the  act  of 
God  from  delivering  the  property,  their  liability  is  discharged 
Therefore,  where  the  bond  was  for  the  forthcoming  of  a  slave, 
who  died  before  the  parties  were  bound  to  deliver  him,  it  was  de- 
cided that  they  were  not  responsible.^ 

§  342.  The  measure  of  recovery  on  a  delivery  bond,  is  the  value 
of  the  property  secured  by  it,  not  exceeding  the  amount  of  the 
plaintiff's  recovery  in  the  attachment  suit.  If  the  value  be  stated 
in  the  bond,  it  will  be  conclusive  on  the  obligors  ;  if  not  stated,  it 
must  be  estalilished  hy  proof.  Where,  therefore,  the  bond  was  in 
double  the  amount  of  the  demand  in  the  attachment  suit,  it  was 
held  to  be  error,  in  the  absence  of  proof  of  value,  for  the  court  to 
instruct  the  jury,  that  they  should  assume  tlie  half  of  the  penalty 
of  the  bond  to  be  the  true  value  of  the  property.^ 

1  Crisman  r.  Matthews,  2  Illinois  (1  Scammon),  148. 

^  Morgan  v.  Furst,  4  Martin,  n.  s.  116. 

'  Guay  V.  Andrews,  8  Louisiana  Annual,  141. 

♦  Braley  v.  Clark,  22  Alabama,  361 ;  Cooper  v.  Peck,  Ibid.  406 ;  Morgan  v.  Furst,  4 
Martin,  n.  s.  116. 

^  Falls  V.  Weissinger,  11  Alabama,  801. 

«  Collins  V.  Mitchell,  3  Florida,  4 ;  Moon  r.  Story,  2  B.  Monroe,  3.54 ;  "Weed  v.  Dills, 
34  Missouri,  483. 
[238] 


CHAP.  XIII.]  BAIL   ASD  DELRTBY   BONDS.  §  343 

§  343.  If  one  joint  obligor  in  a  delivery  bond  be  compelled  to 
pay  the  whole  amount  of  a  judgment  recovered  on  tlie  bond,  he 
may  maintain  an  action  against  his  co-obligor  for  contribu- 
tion.^ 

1  Labcatime  v.  Sweeney,  17  Missouri,  153. 

[239] 


§  344  BAILMENT   OF   ATTACHED   PROPERTY.  [CIIAP.  XIV. 

t 

CHAPTER  XIY. 

BAILMENT  OP  ATTACHED  PROPERTY. 

§  344.  In  the  New  England  States  and  New  York,  a  practice 
exists,  wliicli  allows  an  otlicer  who  has  attached  pcrj^onal  proijcrty 
ou  mesyie  process,  to  dispense  with  liis  own  actual  custody  thereof, 
by  delivering  it  to  some  other  person, —  usually  a  friend  of  the 
defendant,  though  the  plaintiff  may  lawfully  become  the  bailee,^ 
—  and  taking  fnjni  him  a  writing,  acknowledging  the  receipt,  and 
promising  to  redeliver  the  property  to  the  officer  on  demand. 
This  practice  has  not  its  authority  in  any  statutory  provision  ;  but 
it  is  nevertheless  in  constant  use  in  those  States ;  and  though  not 
regarded  as  one  U>  which  the  officer  is  officially  bound  to  conform,^ 
has  yet  become  so  well  settled,  and  is  so  far  held  in  regard,  that 
the  Superior  Court  of  New  Hampshire  remarked,  that  "  there 
are  cases  in  which  a  sheriff,  if  he  should  refuse  to  deliver  goods 
to  a  friend  of  the  debtor,  ui)0u  an  offer  of  good  security,  would 
deserve  severe  censure."^  The  same  court  said:  "  It  is  true  that 
when  goods  are  attached  the  sheriff  may  retain  them  in  his  own 
custody  in  all  cases,  if  he  so  choose.  But  it  would  often  subject 
him  to  great  inconvenience  and  trouble  so  to  retain  them.  In 
many  cases,  the  interest  both  of  the  debtor  and  the  creditor 
requires  that  they  should  be  delivered  to  some  person,  who  will 
agree  to  be  responsible  for  them.  And  it  is  a  common  practice 
so  to  deliver  them ;  a  practice  which  is  not  only  lawful,  but  in 
a  high  degree  useful  and  convenient."**    It  seems  from  a  recent 

1  Tonilinson  v.  Collins,  20  Conn.  364. 

2  Davis  r.  Miller,  1  Vermont,  9;  Moulton  v.  Chadborne,  31  M.iine,  152. 

8  Runlctt  p.  Bell,  5  Xew  Ilamp.  433.  The  Supreme  Court  of  Vermont,  in  relation 
to  this  practiec,  said :  "  The  taking  of  a  receipt  for  property  attached  is  a  common 
mode  of  perfecting  an  attachment.  It  saves  expense  to  all  the  parties,  relieves  the 
officer  of  the  care  and  custody  of  the  i)roperty,  and  gives  the  creditor  all  he  seeks  for 
by  his  attachment,  viz.  security  for  his  debt.  It  is  at  once  so  convenient  and  so  safe  a 
mode  of  securing  all  the  purposes  of  an  attachment  that  it  has  been  adopted  universally 
in  practice ;  and  though  not  authorized  by  statute,  is  recognized  in  law  as  an  official 
act  having  definite  and  well-settled  rights,  duties,  and  obligations."  Austin  v.  Burling 
ton,  34  Vermont,  506. 

*  Runlctt  V.  Bell,  5  New  Hamp.  433.  In  Phelps  v.  Gilchrist,  8  Foster,  266,  Bell,  J., 
used  the  following  language  in  reference  to  this  practice :  "  The  practice  of  delivering 
[240] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED   PROPERTY.  §  345 

decision  in  Maine,  that  the  consent  of  the  plaintiff  to  this  bailment 
is  necessary  to  discharge  the  officer  from  responsibility  to  him  for 
the  property.  If  the  goods  be  delivered  to  a  receiptor,  without 
the  plaintiff's  consent,  the  officer  will  be  liable  to  him  at  all  events 
for  them,  if  they  are  needed  to  satii^fy  an  execution  obtained  by 
the  plaintiff.^  But  it  was  also  held,  in  the  same  State,  that  if  an 
attachment  plaintiff  approve  the  aljility  of  a  receipter  for  attached 
property,  that  docs  not  exonerate  the  officer  from  making  effort  to 
find  the  property  to  respond  to  execution,  or  from  the  duty  of 
bringing  a  suit  upon  the  receipt.^ 

§  345.  This  contract  of  bailment  does  not  seem  to  be  uniform 
in  its  terms,  either  throughout  the  States  in  which  it  is  resorted 
to,  or  in  any  one  of  them,  but  varies  according  to  the  circum- 
stances of  the  case,  or  the  intent  of  the  parties.  Sometimes,  and 
most  frequently,  the  bailee  simiily  acknowledges  to  have  received 
from  the  officer  certain  goods,  attached  by  the  latter  in  a  case 
named,  which  he  agrees  to  return  to  the  officer  on  demand. 
Sometimes  the  value  of  the  goods  is  stated ;  and  not  unusually 
the  contract  is  in  the  alternative,  either  to  return  the  goods,  or 
j)ay  the  debt  and  costs  in  the  case.  In  such  case  the  receipt  is 
none  the  less  a  positive  contract  to  redeliver  the  goods ;  the 
alternative  embraced  in  it  does  not  authorize  the  bailee  to  refuse 
to  surrender  the  goods,  nor  can  it  in  any  sense  be  construed  as 
vesting  in  him  a  power  of  sale.^  In  such  case  the  bailee  cannot 
reqnire  the  officer  to  take  an  equal  quantity  of  goods  of  the  same 
kind  and  quality,  or  discharge  himself  by  paying  the  officer  the 

Itroporty  attiulied  to  a  liuik-c  for  safe  kccpinfr,  must  have  been  coeval  with  the  practice 
of  making  such  attachments.  It  is,  in  its  nature,  a  simiiie  deposit,  a  ilelivery  of  the  prop- 
erty to  be  kept  by  the  depositary,  without  compcnsati<ui,  until  called  for  by  the  attach- 
ing othccr.  No  particular  afjrcenient  was  necessary,  and  no  writiu},'  was  required.  The 
convenience  and  safety,  perhaps  of  both  parties,  would  render  some  writing,  showing 
the  facts,  necessary,  in  citses  where  the  number  of  the  articles  attached  was  considerable 
In  general,  a  simple  receipt,  admitting  that  the  articles  enumerated  had  been  delivered 
by  the  otticer  to  the  receiptor  for  safe  keeping,  and  to  be  returned,  on  request,  would 
be  the  most  natural  form  of  such  a  writing.  Various  circumstances,  which  might 
become  material  to  the  parties,  woitld  as  naturally  be  introduced,  as  their  utility  came 
to  be  seen,  until  everything  supposed  to  be  otherwise  likely  to  be  an  occasion  of  dispute, 

would  be  mentioned There  is  ordinarily,  however,  nothing  in  such  a  receipt 

which  changes  the  duties  or  obligations  of  the  parties,  from  what  they  would  be,  on  a 
simple  dejKjsit,  without  any  writing  whatever.  Usually  the  sole  advantage  of  the  writ- 
ing is,  that  it  contains  evidence  of  facts  which,  in  the  event  of  any  controverBy,  may  be 
disputed,  and  may  sometimes  be  ditTicult  of  proof." 

1  Moulton  V.  Chadborne,  .'31  Maine,  152;  Franklin  Bank  v.  Small,  24  Il)id.  52. 

»  Allen  V.  Doyle,  33  Maine,  420.  »  Sibley  v.  Story,  8  Vermont,  15. 

16  [241] 


§  346  BAILMENT   OF   ATTACHED   PROPERTV.  [CHAP.  XIV. 

value  of  the  goods  ;  but  he  must  return  the  identical  articles 
delivered  to  him,  or  pay  the  debt.^  Occasionally,  too,  the  receipt 
gives  the  bailee  the  alternative,  of  returning  the  goods  or  indem- 
nifying the  olTicer  against  all  damages  he  may  sustain  in  con- 
sequence of  his  having  attached  the  property.  In  such  a  case, 
where  an  acticni  was  brought  on  the  receipt,  it  was  urged  at  bar 
that  the  receipt  being  in  the  alternative  gave  the  receipter,  at  his 
election,  the  right  to  return  the  property  or  indemnify  the  officer; 
and  that  if  he  did  not  return  the  property  on  demand,  the  alter- 
native became  absolute,  and  no  action  would  accrue  on  the  con- 
tract till  the  officer  had  been  damnified.  But  the  court  said  ; 
"  This  is  not  a  sound  construction  of  the  contract,  and  cannot  be 
conformable  to  the  inteni;  of  the  parties.  The  officer  had  no 
power  to  make  any  disposition  of  the  property  otherwise  than  for 
safe  keeping  ;  and  to  construe  this  contract,  in  efTect,  as  a  cou 
ditional  sale,  would  j)ervert  the  very  object  of  the  parties.  The 
only  eifect  which  the  latter  clause  in  the  receipt  can  have  is  to 
measure  the  extent  of  the  receipter's  liability,  and  is  no  more 
than  a  legal  result  of  a  non-delivery  of  the  property."^  But 
where  the  contract  of  the  receipter  is  to  pay  the  officer  a  specified 
sum,  or  redeliver  the  property  on  demand,  it  is  held,  in  Maine, 
that  the  receipter  has  the  election,  to  pay  the  money  or  deliver 
the  property ;  that  the  officer  must  be  considered  as  having' 
abandoned  his  possession  ;  and  that  the  attachment  is  thereby 
iissolved.^ 

§  346.  Usually  the  receipt  makes  specific  mention  of  the  goods 
attached  ;  and  this  is  always  desirable,  but  not  necessary  to  the 
legality  of  the  contract.  "Whatever  can,  by  just  implication,  be 
construed  as  acknowledging  the  receipt  of  property,  to  be  re- 
delivered to  meet  the  exigency  of  the  attachment,  will  be  suffi- 
cient. As,  for  instance,  a  paper  in  the  following  form  —  "Value 
received,  I  promise  to  pay  B.,  deputy  sheriff,  $400  on  demand  and 
interest, — rsaid  note  being  security  to  said  B.  for  a  writ  C.  vs.  D. 
which  is  this  day  sued  "  —  was  held  to  be  in  effect  an  acknowledg- 
ment of  property  to  that  amount  received  as  attached  on  the  writ, 
and  a  valid  receipt.* 

^  Anthony  v.  Comstock,  1  Ehode  Island,  454. 
2  Page  V.  Thrall,  11  Vermont,  230. 

8  Waterhouse  v.  Bird,  37  Maine,  326  ;  Waterman  v.  Treat,  49  Ibid.  309. 
*  Bruce  v.  Pettengill,  12  New  Hamp.  341. 
[242] 


CHAP.  XIV.  ]  BAILilENT   OF   ATTACHED   PROPERTY.  §  349 

§  347.  Over  this  contract  the  plaintiff  in  the  action  has  no 
control  ;  but  it  is  taken  by  the  officer  for  his  own  security,  that 
he  may  be  enabled  to  discharge  the  responsibility  he  has  assumed 
in  his  official  capacity.  But  if,  after  the  plaintiff  has  obtained 
judgment  in  his  action,  the  officer  deliver  a  receipt  taken  therein 
for  goods,  to  the  plaintiff's  attorney,  to  be  prosecuted  for  the 
plaintiff's  benefit,  this  is  an  equitable  assignment  of  it,  which 
will  preclude  the  officer  from  interfering  with  the  avails  of  the 
receipt  when  judgment  has  been  obtained  on  it,  though  obtained 
in  his  name.^ 

§  348.  An  officer  having  attached  chattels,  becomes  liable  for 
them,  at  the  termination  of  the  suit,  either  to  the  plaintiff  or  the 
defendant ;  to  the  former,  if  he  obtain  judgment,  and  issue  execu- 
tion, and  take  the  necessary  steps  to  have  it  levied  pursuant  to  the 
attachment ;  to  the  latter,  if  the  attachment  be  dissolved,  by  judg- 
ment in  liis  favor,  or  otherwise.  Under  such  circumstances  it 
is  manifest  that  a  bailment  of  the  property,  if  it  were  not  recog- 
nized as  a  legal  act  of  the  officer,  would  not  in  any  way  a"ffect  his 
relations  to  the  plaintiff  and  defendant ;  and  consequently  he 
would  be  under  the  necessity,  either  of  retaining  the  property  in 
his  own  actual  custody,  or  of  assuming  upon  himself  the  entire 
responsibility  of  suffering  it  to  go  into  the  hands  of  a  third  person. 
l>ut  we  have  seen  that  the  bailment,  wherever  this  practice  pre- 
vails, is  regarded  as  a  legal  act ;  and  it  must  needs  be,  therefore, 
that  questions  will  arise  as  to  the  rights,  duties,  and  liabilities 
of  all  the  parties.     These  we  will  now  proceed  to  consider. 

§  340.  That  which  seems  to  lie  nearest  the  foundation  of  this 
subject,  is  the  relation  which  is  established  by  the  contract  of 
bailment  between  the  officer  and  the  bailee.  This  has  been  the 
subject  of  frequent  discussion,  and  the  conclusion  seems  to  have 
been  generally  arrived  at,  that  the  bailee  is  to  be  \dcwed  in  the 
light  of  a  servant  or  agent  of  the  officer.^     In  New  York  he  was 

i  Clark  V.  Clough,  3  Maine,  357  ;  Jewett  v.  Dockray,  34  Ibid.  45 ;  Phillips  v.  Bridge, 
1 1  Mass.  242. 

-  Ludden  v.  Leavitt,  9  Mass.  104;  Warren  v.  Leland,  Ibid.  265;  Bond  v.  Padelford, 
13  Ibid.  394;  Commonwealth  v.  Morse,  14  Ibid.  217;  Brownell  v.  Manchester,  1  Pick. 
2.'?2;  Small  v.  Hutchins,  19  Maine,  255;  Eastman  v.  Avery,  23  Ibid.  248;  Barker  v. 
Miller,  6  Johns.  195  ;  Brown  v.  Cook,  9  Ibid.  361  ;  Dillenback  v.  Jerome,  7  Cowen,  294; 
Mitchell  i;.  Hinman,  8  Wendell,  667;  Gilbert  v.  Crandall,  34  Vermont,  188. 

[243] 


§  351  BAILMENT   OF   ATTACHED   PROPERTY.  [CIIAP.  XIV. 

formerly  regarded  as  a  mere  naked  bailee,  having  no  interest  or 
projKM-ty  in  the  goods  ;  and  in  Massachusetts  sucli  is  the  doctrine 
now  ;  but  however  true  this  may  be  as  between  him  and  tlio 
officer,  it  will  be  seen,  in  another  pluce,^  that  the  weight  of 
reason  and  authority  is  greatly  in  favor  of  his  being  considered 
as  having  rights  in  the  property,  as  against  third  persons,  which 
will  enable  him  to  maintain  his  possession  of  it.  ^  All  questions, 
however,  arising  between  him  and  the  officer,  will  be  found  to  be 
matt-rially  iilTccted  by  their  mutual  relation  being  regarded  as  that 
of  master  and  bcrvunt,  or  principal  and  agent. 

§  350.  An  olTie(^r,  by  the  levy  of  an  attachment,  acfiuiros  a 
spei'ial  property  in  the  goods  seize<l.  As  long  as  the  attaclnnont 
continues  in  force,  and  its  lien  upon  tlie  property  remains  undis- 
turbed, tliat  sj)ccial  property  cxi-sts,  and  enables  the  officer  to 
maintain  his  rights  acquired  by  the  levy.  An  indisj)ensable  ele- 
ment of  the  continued  existence  of  the  lien  is,  the  officer's  con- 
tinued possession  of  the  property,  actual  or  constructive,  that  is, 
personally  or  by  another.  As  the  l)ailment  of  it  is,  for  the  time, 
a  surrender  of  his  personal  or  actual  possession,  the  question  is 
presented,  —  what  is  the  effiict  of  the  bailment  on  the  lien  of  the 
attachment  ? 

§  351.  In  Massachusetts,  it  was  once  held  to  be  very  clear,  that 
after  an  officer  had  delivered  attached  j>roperty  to  a  receijiter,  and 
taken  his  receipt  therefor,  and  his  promise  to  redeliver  it  on  de- 
mand, it  could^no  longer  be  considered  as  in  the  constructive  pos- 
session of  the  officer.^  But  this  view  is  wholly  inconsistent  with 
other  decisions  in  the  same  State,''  and  not  less  with  the  doctrine 
maintained  there  in  numerous  cases,  that  the  special  proj)erty  of 
the  officer  in  tlie  goods  continues  after  the  bailment,  and  that  the 
receiptor  is  the  mere  servant  of  the  officer,  having  himself  no  rights 
in  the  goods,  and  therefore  unal)le  even  to  maintain  legal  remedies 
for  the  disturbance  of  his  possession.  Equally  is  it  opposed  to  the 
current  of  authority  elsewhere.  In  Vermont,  New  Hamj)shire, 
and  Connecticut,  it  has  always  been  considered  that  the  delivery 
of  attached  property  to  a  receipter,  and  taking  his  receipt  therefor, 

1  Post,  §  367. 

2  Knap  V.  Sprapue,  9  Mass.  258. 

8  Bond  V.  Padelford,  13  Mass.  394 ;  Baker  v.  Fuller,  21  Pick.  318  ;  Ludden  v.  Leavitt, 
9  Mass.  104. 

[244] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED   PROPERTY.  §  353 

does  not  discharge  the  lien  of  the  attachment,  or  devest  the  officer 
of  his  custody  of,  or  special  property  in,  the  goods.^ 

§  352.  In  ifainc,  under  a  statute  which  declares  "  that  when 
hay  in  a  barn,  sheep,  horses,  or  neat  cattle  are  attached  on  mesne 
process,  at  the  suit  of  a  bond  fide  creditor,  and  are  suffered  by  the 
of!icer  making  such  attachment  to  remain  in  the  possession  of  the 
debtor,  on  security  given  for  the  safe  keeping  or  delivery  thereof 
to  such  officer,  the  same  shall  not,  by  reason  of  such  possession 
of  the  debtor,  be  suVyect  to  a  second  attachment,  to  the  prejudice 
of  the  first  attachment";  it  was  held,  that  this  was  designed  to 
preserve  and  continue  the  lien  on  the  property  attached,  in  the 
same  manner  as  tliough  it  had  remained  in  the  exclusive  posses- 
sion of  tlie  officer ;  and  that  in  such  case  tlie  debtor  cannot  sell 
the  property,  and  that  even  a  bond  fide  purchaser  of  it  without 
notice  acquires  no  rights  in  it.'^ 

§  353.  Since,  then,  the  officer.'s  special  property  is  not  lost  by 
the  bailment,  and  the  bailee  stands  in  the  position  of  his  servant, 
it  follows  that  the  officer,  —  where  no  time  is  stated  in  the  receipt 
for  tlie  return  of  the  goods,  —  may,  at  any  time  wliile  his  special 
proj)erty  in  them  continues,  or  while  he  is  responsible  for  them  to 
any  party  in  the  suit,  or  to  the  owner  of  them,  retake  them  into 
liis  actual  possession,  from  the  bailee,  or  from  the  defendant,  if  tlie 
bailee  shall  have  suffered  them  to  go  l)ack  rnto  his  jjossession :  ^ 
and  this,  as  well  where  the  bailment  is  tlie  act  of  his  deputy,  and 
the  receipt  is  taken  by  the  deputy  in  his  own  name,  as  where  the 
contract  is  in  the  nam^  of  tiie  principal.*  The  Supreme  Court  of 
Maine  expressed  serious  doubts  whether  the  officer  could  retake 

•  Picrson  i".  Ilovcy,  1  D.  Chipman,  51  ;  Enos  v.  Brown,  Ibid.  280;  Beach  i;.  Abbott, 
4  Vermont,  605  ;  Hood  >•.  St-ott,  .">  Ibid.  26.3  ;  Sibk-y  r.  Story,  8  Ibid,  l."} ;  Kelly  v.  Dex- 
ter, 15  Ibiil.  ."HO;  Whitney  v.  Farwell,  10  New  llamp.  9;  Tomlinson  v.  Collins,  20 
Conn.  .'J64. 

-  Woodman  r.  Trafton,  7  Maine,  178;  Carr  v.  Farley,  12  Ibid.  328. 

"  Pier.-on  r.  Ilovcy,  1  1).  Chipman,  51  ;  Enos  i'.  Brown,  Ibid.  2S0;  Beach  r.  Abbott, 
4  Vermont,  605  ;  Hood  v.  Scott,  5  Ibid.  26.3  ;  Sibley  v.  Story,  8  Ibid.  15  ;  Kelly  v.  Dex- 
ter, 15  Ibid.  310;  Bri-r^rs  v.  Mason,  31  Ibid.  43.3;  Odiome  v.  Colley,  2  New  Ilamp.  66; 
Whitney  r.  Farwell,  10  Ibid.  9;  Bond  r.  Padelford.  13  Mass.  394.  Bnt  in  Massachu- 
Bctts,  it  was  hehl  in  a  late  ca.se,  that  a  delivery  of  the  attached  ;,'(jods  by, the  receipter  to 
the  defendant,  legally  operates  as  a  dischar;^e  of  the  attachment,  and  a  termination  of 
the  atlachin;;  ofHcer's  sjiccial  property  in  them.  Baker  r.  Warren,  6  Gray,  527  ;  Col- 
well  V.  Richards,  9  Ibid.  374.  And  the  same  view  is  held  in  Maine.  Waterhouse  v 
Bird.  37  Maine,  326;  Stanley  v.  Drinkwater,  43  Ibid.  468. 

*  Baker  i'.  Fuller,  21  Pick.  318;  Davis  i-.  Miller,  1  Vermont,  9. 

[245] 


§  3oG  BAILMENT   OF    ATTACUKD    I'HOl'KltTV.  [CHAP.  XIV. 

the  [)ro[)crty  without  the  consent  of  tlie  debtor  or  recoiptcr;*  but, 
Uj)on  both  principle  and  tiuthority,  it  is  dinicult  to  i>erccive  wljy  it 
may  not  bo  done. 

§  3/>4.  This  ri;;ht,  when;  there  is  but  one  attachment,  usually 
deiKJnds  on  the  ollicer's  resjionsibility  to  the  plaintilV;  that  is, 
u|M>n  the  necessity  for  his  having  the  pro|>crty  in  hand  to  satisfy 
tlie  plaintiff's  demand.  If,  by  the  dissolution  of  the  attachni'-nt, 
that  necessity  has  ceased  to  exist,  and  at  the  same  time  the  baihMj 
has  suffered  the  property  to  go  back  into  the  defendant's  hands, 
tlie  ofTicer,  not  being  any  longer  resjMinsible  to  either  plaintiff  «.r 
defendant  for  it,  cannot  demand  it  of  his  bailee.  But  if,  u|>on  the 
dis.solution  of  the  attachment,  the  jtro|H'rty  l>e  still  in  the  liailee'.n 
possession,  the  officer  being  l)ound  to  restore  it  to  the  defendant, 
or  to  the  owner,  may  demand  it  from  the  builoo  for  lliat  purpose.' 

§  35').  If,  while  the  pro[>erty  is  still  in  the  bailee's  possession, 
the  same  officer  lay  a  .second  attachment  on  it,  his  control  over  it 
is  not  terminated  by  the  dissolution  of  that  under  which  the  bail- 
ment  was  created,  if  the  second  attachment  renmin  in  force  ;  f.  r 
by  the  second  attachment  he  Incomes  resixjusible  for  the  proju'i  ly 
to  the  plaintiff  therein  ;  and  tln^  bailee  is  resjwjnsilde  to  him.  Tli:  t 
this  should  l)e  so,  dejK'uds,  of  course,  on  the  legality  of  a  second 
attachment,  of  which  there  can  bo  no  doubt. 

§  :}.*)»).  While  attached  projKjrty  remains  in  the  possession  of  the 
attaching  officer,  or  of  his  bailee,  no  other  officer  can  levy  another 
attachment  on  it.'  But  he  who  has  seized  property  under  an  at- 
tachment, so  long  as  he  has  cither  actual  or  constructive  possos>ij)n 
of 'it,  may  attach  it  again,  at  the  suit  of  the  same  or  another  plain- 
tilf.  This  right  extends  over  pronerty  in  the  hands  of  a  receipter, 
as  well  as  that  in  the  officer's  immediate  custody.  While  it  is  in  • 
the  receipter's  possession,  the  second  attachment  may  bo  made  by 
the  same  officer,  without  an  actual  seizure,  by  the  officer's  return- 
ing that  he  has  attached  the  j)ropcrty,  and  giving  the  receipter 
notice,  with  directions  to  hold  it  to  answer  the  second  writ.  But 
if  the  receipter  has  permitted  the  property  to  go  back  into  the 

'  Weston  r.  Dorr,  25  Maine,  1 76. 

•^  Whittier  r.  Smith,  11  Mass.  211  ;  Webster  v.  Tlarper,  7  New  Hamp.  594. 
*  Wat.sun  V.  Todd,  5  Mass.  271  ;   Vinton  v.  Bradford,  13  Ibid.  114;  Thompson  r. 
Marsh,  14  Ibid.  269  ;  Odiorne  i-.  Collev,  2  New  llamp.  66 ;  Sinclair  r.  Tarbox,  Ibid.  135. 
[24GJ 


CHAP.  XIV]  BAILMENT    OF    ATTACHED   PROPERTY.  §  357 

defendant's  liands,  a  second  uttiichiuent  cannot  be  made  without 
a  new  seizure.^  When  an  ofhcer  hiys  a  second  attachment  on 
goods  hi  the  hands  of  a  bailee,  the  latter  may  decline  to  hold  them 
for  the  security  of  that  attachment,  and  may  return  them  to  the 
officer ;  ^  but  if  he  make  no  olyection  to  holding  them,  his  liability 
will  be  the  same  under  the  second  as  under  the  first  attachment. 

§  0')7.  As  has  been  intimated,  it  is  very  usual  for  the  receipter 
to  permit  the  property  to  remain  in  the  defendant's  hands.    Henco 
liave  arisen  what  are  termed  nominal  attachments ;  that  is,  where 
the  proi)erty  is  not  actually  seized,  or,  if  seized,  is  left,  at  the  time, 
in  the  defendant's  possession,  upon  some  friend  of  the  defendant 
giving,  in  either  case,  a  receipt  therefor.     Such  an  attachment  is 
BO  far  valid  as  to  bind  the  officer  for  the  value  of  the  property,  and 
to  give  force  to  the  contract  between  him  and  the  bailee;  l>ut,  with 
resjicct  to  strangers,  other  creditors,  or  purchasers  without  notice, 
it  is  wljolly  inojicrative.^     The  Supreme  Court  of  Massachusetts 
on  tliis  iM>int  said :   "  Such  transactions  are  always  confidential ; 
the  shrritV  takes  his  security  from  the  friend  of  the  debtor ;  and 
this  friend  is  secured  by,  or  relies  ujion,  the  debtor.     They  all  act 
at  their  peril,  and  have  it  not  in  their  j)ower  to  affi^-ct  the  security 
of  the  alUehing  creditor,  or  by  such  means  to  withhold  the  i)roi>- 
erty  from  other  creditor/."*     Therefore,  in  all  such  cases,  where 
the  pro|)erty  remains  in  the  debtor's  hands,  whether  because  never 
removed,  or  returned  after  a  removal,  though,  as  we  have  seen, 
the  officer  may  at  any  time  during  the  existence  of  the  attachment, 
retake  it  from  the  defendant,  if  the  matter  be  between  him,  the 
l)ailee,  and  the  defendant  only,  yet  the  defendant  may  sell  the 
properly,^  or  it  may  be  attached  l)y  other  creditors.'     And  it  is 
held  in  Massachusetts,  that  a  delivery  of  the  attached  goods  by 
the  receipter  to  the  defendant,  legally  op<>rates  as  a  discharge  of 
the  attachment,  and  a  termination  nf  tb.'  iittaching  officer's  s]>ecial 
property  in  them."  • 

>  Knap  r.  Hpnf^e.  9  3IaM.  258  ;  Whitticr  v.  Smith.  11  Ibid.  21 1  ;  Odiorne  v.  Colley, 
2  New  Hamp.  66  ;   Whitney  r.  Kiirwell.  10  Ibid.  9  ;  Tomlinson  v.  Collins,  20  Conn.  364. 
»  Whitney  v.  Kanvell,  10  New  Hamp.  9. 

•  Bridge  r.  Wvman.  U  .Ma**.  190. 

«  Bridge  v.  Wyman.  U  .Mii.ss.  190;  Phillips  f.  Bridtrc.  11  Ibid.  242. 

*  Dennv  r.  Willurd.  11  IVk.  519;  Robinson  v.  Mansfield.  l.T  Ibid.  139. 

«  Bridge  f.  Wyman.  14  Mass.  190;  Dunldce  c.  Fales,  5  New  Uamp.  527;  Robinson 
0   Manstield,  1.1  i'iik.  1.39. 

■  Baker  r.  Warren,  6  Grav,  527. 

(_247] 


§  3G1  bail.mi:m  of  attaciikd  propebty.  [chap,  nv 

§  3r>8.  It  is  not,  however,  every  possession  by  a  defendant  of 
nis  projjerty  after  an  attacliinent  and  bailment  of  it,  tliat  will  au- 
tjjoiizu  a  second  attaciuncnt.  If  an  oftleer  or  his  bailee,  still 
retaining  his  possession,  bomi  fide,  and  from  motives  of  hnmanity, 
suller  the  defendant  to  use  attached  articles,  which  will  not  bo 
injured  by  such  use,  the  attachment  is  not  thereby  dissolved.^ 

§  359.  But  if  the  bailee  permits  the  defendant  to  hold  and  use 
the  pr<>|i(Mty  as  owner,  the  attachment  is  regarded  as  dissolved,  so 
far  as  lliat  the  pruj»erty  may  be  attached  i>y  another  olTicer  who 
has  no  knowledge  that  a  prior  attachment  is  still  subsisting.* 
"What  knowlcdgi.'  of  such  fact  will  suflice  to  prevent  a  second  at- 
taching olhcer  from  acipiiring  a  lien  on  the  property  thus  found 
in  th«3"  defendant's  hands  may  Ihj  a  question.  Merely  knowing 
the  fact  that  the  property  had  been  once  under  att;ichnient  will 
not  be  suflicient  ;  for  the  olVjcer  might  well  presume  that  that 
attachment  had  been  settled  or  dissolved.  But  if  he  know  that 
the  attachment  and  bailment  still  subsist,  and  that  the  proj>erty  is 
in  the  hands  of  the  defendant  merely  for  his  temporary  conven- 
ience, he  cannot  acipiire  a  lien  by  attaching  it.'^ 

§  ot;0.  If  the  bailee  go  off  and  abandon  all  possessio!i  and  cus- 
tody of  the  property,  and  it  is  attached  by  another  oflicer,*  or  como 
into  the  possession  of  an  adverse  claimant,*  the  lieu  of  the  first 
attachment  is  lost. 

§  3('»1.  An  imjwrtant  question  arises  out  of  this  practice  of  bail- 
ment, as  to  the  liability  of  the  officer  for  the  fidelity  and  pecuniary 
ability  of  the  bailee.  It  seems  to  be  conceded,  that,  if  the  bailee 
is  nominated  or  approved  by  the  plaintitT,  and  he  afterwards  fail  to 
deliver  the  property  when  required  to  meet  the  attachment,  the 
oflicer  cannot  be  held  responsil)le  for  it.^  All,  however,  that  the 
creditor,  by  his  consent  to  the  l)ailnu?nt,  is  supposed  to  agree  to,  is 
to  exonerate  the  officer  from  lialjility  for  losses  occasioned  by  the 

1  Train  v.  Wellington,  12  Mass.  493;  Baldwin  v.  Jackson,  Ibid.  131;  Young  v. 
Walker.  12  New  I  lamp.  502. 

-  Whitney  v.  Farwell,  10  New  Hamp.  9;  Bicknell  v.  Hill,  33  Maine,  297. 

8  Young  r.  Walker,  12  New  Hamp.  502. 

*  Sanderson  v.  Edwards,  16  Pick.  144. 

6  Carrington  v.  Smith,  8  Pick.  419. 

6  Donham  v.  Wild,  19  Pick.  520;   Jenney  v.  Delesdemier,  20  Maine,  183;   Rice  r. 
Wilkins,  21  Il.id.  553;  Farnham  v.  Gilraan,  24  Ibid.  250. 
[248] 


CHAl'.  XIV]  BAILMENT   OF   ATTACHED   PROPERTY.  §  363 

insolvency  or  want  of  fidelity  of  the  bailee ;  but  not  for  losses  oc- 
casioned by  the  neglect  of  the  officer  to  enforce  his  own  rights  and 
remedies  against  his  bailee.^  But  if  the  bailee  be  selected  by  the 
officer,  and  afterwards  fail  to  deliver  the  property,  and  the  value 
of  it  cannot  be  made  out  of  him,  can  the  officer  protect  himself 
from  liability  fur  the  value  of  the  property? 

§  ;1G2.  In  Massachusetts,  Morton,  J.,  said-  "The  officer  who 
attaches  jxjrsonal  prtjperty  is  bound  to  keep  it  in  safety,  so  that  it 
may  be  had  to  satisfy  the  execution  which  may  follow  the  attach- 
ment. This  duty  he  may  i)erform  himself,  or  by  the  agency  of 
others.  If  he  appoint  an  unfaithful,  or  intrust  it  with  an  irre- 
siKmsible,  bailee,  so  that  it  is  lost  through  the  negligence  or  mfi- 
delity  of  the  keeper,  or  the  insufficiency  of  the  receipter,  he  will 
be  resi.onsible  for  the  value  of  the  property."  ^  This  doctrine  was 
affirmed  i)y  Justice  Story,  who  said  that  if  goods  intrusted  to  a 
bailee  "  wore  lost,  or  wasted,  or  the  bailee  should  become  insol- 
vent, tlie  officer  would  be  responsilde  therefor  to  the  creditor."  ^ 
So,  in  Vermont,  where  a  bailee  sold  the  property,  and  converted 
the  proceeds  to  his  own  use,  it  was  held,  that  this  was  the  same  as 
a  conversion  by  the  officer,  and  made  tht*  latter  liable  for  the  prop- 
erty, without  a  previous  demand  of  it  from  him  being  necessary.* 
And  in  the  same  State  it  was  held,  tliat  the  officer  is  responsible 
for  the  fidelity  and  solvency  of  ins  bailee,  the  latter  being  regarded 
as  his  mere  servant.* 

§  363.  On  this  point,  we  find  the  Superior  Court  of  New  Hamp- 
shire Uiking  a  ditTerent  ground  from  that  of  Massachusetts  and 
Vermont.  The  question  there  came  up,  in  reference  to  the  in- 
solvency of  the  bailee.  The  court  said  :  "  To  what  extent  is  an 
officer  resiwnsible  for  goods  by  him  attached  upon  an  original  writ, 
has  not  been  settled  in  any  adjudged  case,  which  has  occurred  to 
us.  He  is,  without  doubt,  to  be  considered  as  a  bailee,  and  an- 
swerable for  the  goods,  either  to  the  debtor  or  the  creditor,  if  they 
be  lost  by  his  neglect  or  fault. 

''  Is  he  answerable  beyond  this  ?     TVe  are,  on  the  whole,  of 

»  Pierce  r.  Strickland,  2  Storv,  292. 

2  Donham  c.  Wild.  19  Pick.  520 ;  Phillips  v.  Bridge.  11  Mass.  242  ;  Cooper  i-.  Mowry, 
16  Ibid.  5. 

»  Picrco  1-.  Strickland,  2  Story,  292. 

*  Johnson  i'.  Edson.  2  Aikcns,  299.  »  Gilbert  v.  Crandall,  34  Vermont,  188 

[249] 


§  304  DAII.MKNT    OF    ATTACIUID    I'ROPEin  V.  [cilAlV  Xl  \  . 

Opinion  that  ho  is  not.  As  no  casps  directly  in  jK)int  are  to  bo 
found,  wo  nuist  resort  to  the  rules  which  have  been  applied  iu 
analogous  cases. 

"  It  seems  always  to  have  been  understood  as  settled  law,  that, 
when  a  shorilT  takes  bail  in  any  suit,  if  the  bail  so  taken  l>o  suf- 
ficient, iu  iiU  appearance,  when  accepted  as  bail,  the  .sherilT  will 
not  be  liul)le  for  their  insufficiency  in  the  end  to  satisfy  the  judj;- 
ment  wliich  tiie  pluintifT  may  recover.  And  if,  in  replevin,  the 
shorilT  take  persons  as  sureties  in  the  replevin  Injnd,  who  are  ap- 
parently sulhcient,  he  will  not  be  res|)onsil)le  for  their  jsufliciency, 
unless  he  was  guilty  of  negligence  in  making  inquiries  as  to  their 
circumstances. 

"  Tliere  seems  to  us  to  be  a  very  close  analogy  between  the  cases 
of  taking  bail  and  replevin  bonds,  and  the  case  of  delivering  goods, 
which  have  l)oon  attached,  to  some?  person  for  safe  keeping.  It  is 
true  that  when  goods  are  attached,  the  sheriiT  may  retain  them  in 
his  own  cust(jdy,  in  all  cases,  if  he  so  choose,  liut  it  would  often 
subject  him  to  great  inconvenience  and  trouble  so  to  retain  them. 
In  many  cases,  the  interest  of  both  the  debtor  and  the  creditor 
requires  tiuit  they  should  be  delivered  to  some  person,  who  will 
agree  to  be  rosponsible  for  them.  And  it  is  a  common  practice  so 
to  deliver  tliem  ;  a  j)ractic*e  wliich  is  not  only  lawful,  but  in  a  high 
degree  useful  and  convenient.  Indeed,  there  are  cases  in  which 
a  shorilT,  if  ho  should  refuse  to  deliver  goods  to  a  friend  of  the 
debtor,  upon  an  offer  of  good  security,  would  deserve  severe  cen- 
sure. 

"  Wo  arc,  therefore,  induced  to  hold,  that  if  a  sheriff  deliver 
goods,  Nvhicli  ho  has  attached,  to  persons  who  arc  apparently  in 
good  circumstances,  and  such  as  j)rudent  men  would  have  thought 
it  sale  to  trust,  for  safe  keeping,  ho  is  not  liable,  if  the  goods  bo 
lost  through  the  eventual  insolvency  of  the  persons  to  whom  they 
may  have  boon  so  delivered."  ^  In  a  subsequent  case  the  same 
court  hold,  that  the  officer  is  not  responsible  for  the  tortious  acts 
of  his  bailee,  committed  without  his  knowledge  or  consent.'^ 

§  364.  Here,  then,  is  a  conflict  of  judicial  decisions,  between 
which  we  will  not  attempt  to  decide.     The  weight  of  authority 

1  Runlctt  1-.  Bell,  5  New  Hamp.  433 ;  Howard  v.  Whittemore,  9  Ibid.  134 ;  Bruce  o. 
Pettengill,  12  Ibid.  341. 
'  Barron  v.  Cobleigh,  11  New  Hamp.  557. 
[250] 


CRAP.  XIV]  BAILMKNT   OF   ATTACHED   PROPERTY.  §  367 

appears  to  be  against  the  New  Hampshire  doctrine  ;  but  the 
reason  in-,'  upon  which  it  is  based  is  certainly  calculated  to  shake 
the  conlidencc  which  might  otherwise  be  felt  in  the  opposite 
opinion. 

§  365.  What  has  been  said  with  regard  to  the  liability  of  the 
officer  refers  to  his  relation  to  the  plaintiff.  He  is  also  liable  to 
the  defendant  for  a  return  of  the  property  to  him  in  the  event  of 
the  attachment  being  dissolved,  or  the  demand  upon  which  it  was 
issued  being  satisfied.  Where,  however,  the  bailment  takes  place 
with  the  consent  of  the  defendant,  the  ofTieer  is  not  answerable  to 
him  for  the  pro^xirty,  until  a  reasonable  time  for  recovering  it  from 
the  builee  >hall  have  elapsed,  after  the  defendant  has  become  en- 
titled to  have  it  returned  to  him.^ 

§  36»).  Having  thus  stated,  first,  the  general  propositions  hear- 
ing upon  this  contract,  and  then  the  rights  and  liabilities  of  the 
officer  in  relation  to  bailed  property,  we  will  now,  before  proceed- 
ing to  the  examination  of  his  remedies,  bestow  attention  on  the 
rights  and  duties  of  the  bailee. 

§  367.  Wliat  rights  docs  the  bailee  acquire,  by  the  bailment,  in 
and  over  the  attached  property?  In  Massachusetts,  he  has  always 
been  consi.lered  a  mere  naked  bailee,  having  no  property  in  the 
goods,  and  unable  to  maintain  an  action  for  them,  if  taken  out  of 
his  custodv  bv  a  wrongdoer.  In  a  case  of  similar  character,  the 
court  there  once  held  ditTenMitly  ;  considering  that  a  naked  bailee, 
thou.'h  he  miijht  not  maintain  replevin,  — since,  to  sustain  that 
action,  i.n.prrtv  in  the  plaintilT,  either  general  or  special,  is  neces- 
sarv,— v.'t  mi'irht  bring  trover  or  trespass  ; ^  but  in  every  case 
where  the  point  has  arisen  in  the  case  of  a  receiptor  of  attached 
property,  the  same  court  has  held  that  the  receiptor  could  main- 
tain no  action  at  all.^  The  same  doctrine  was  long  held  m  New 
York  ;  *  but  has  fmallv,  after  an  extended  discussion  before  the 
Court  of  Errors  in  that  State,  been  discarded;  and  it  is  now  held 

1  Bissell  c.  Iluntinjjton,  2  New  Hamp.  142. 

■•«   Wiiterinan  r.  Uubinson,  5  Mas^.  303.  T„i„n,i 

«  Lu.l,U.u.  Leavit..9  Ma.s.  104;  Perley  v.  Foster.  I^'^'  "2;  Warren  .Lcla^^^^^ 
Ibul  265;  Bund  r.  I'udelford.  13  Ibid.  394;  Commonwealth  i-.  Morse,  14  Ibid.  217, 
Browiall  r.  Manchctcr,  1  Pick.  2-32 ;  Whittier  v.  Smith,  11  >W  2  1. 

i  l),lUnba.k  r.  Jerome.  7  Cowen,  294 ;  Norton  ..  The  People.  8  Ib.d.  137 ,  ISLtcheU 
p.  Hioman.  8  Wendell.  667.  r-2'in 


§  369  BAILMENT   OF  ATTACHED  PROPERTY.  [CHAP.  XTV. 

there,  that  the  receipter  may  maintain  replevin.^  The  Superior 
Court  of  New  Hampshire,  at  an  early  day,  held,  that  for  the 
purpose  of  vindicating  his  possession  against  wrongdoers,  the 
receipter  has  a  special  property  in  the  goods,  and  may  maintain 
trover  against  one  who  takes  them  from  him.^  In  Vermont,  it 
was  decided  that  the  bailee  has  a  possessory  interest  in  the  prop- 
erty, which  will  enable  him  to  maintain  trover  for  it  against  a 
wrongdoer ;  that  in  order  to  maintain  the  action  it  is  not  neces- 
sary to  hold  that  he  has  property  in  the  goods ;  and  that  his  pos- 
session and  responsibility  over  to  the  officer  furnish  sufficient  title 
and  just  right  for  him  to  recover.^  In  Connecticut  it  is  held,  that 
the  receipter  may  maintain  trespass  for  a  violation  of  his  posses- 
sion.* Justice  Story,  in  noticing  the  Massachusetts  doctrine, 
says :  "It  deserves  consideration,  whether  his  possession  would 
not  be  a  sufficient  title  against  a  mere  wrongdoer  ;  and  whether 
his  responsibility  over  to  the  officer  does  not  furnish  a  just  right 
for  him  to  maintain  an  action  for  injuries,  to  which  such  respon- 
sibility attaches."^  And  Chancellor  Kent  says:  "Though  the 
bailee  has  no  property  whatever  in  the  goods,  and  but  a  mere 
naked  custody,  yet  the  better  opinion  would  seem  to  be,  that  his 
possession  is  a  sufficient  ground  for  a  suit  against  a  wrongdoer."  ^ 
It  may,  therefore,  be  considered  that  the  weight  of  authority  is 
largely  against  the  doctrine  advanced  in  Massachusetts ;  which 
seems  alike  repugnant  to  well-established  principles,  and  to  the 
justice  due  to  bailees  in  such  cases. 

§  3G8.  A  receiptor's  position  resembles  in  one  respect  that  of 
bail ;  in  that  he  may  at  any  time  while  liable  on  his  receipt  to  the 
officer,  retake  the  property  from  the  defendant's  possession,  and 
deliver  it  to  the  officer,  in  discharge  of  his  receipt.'^ 

§  369.  Though  the  mere  fact  of  the  bailment  gives  the  receipter 
no  power  of  sale  of  the  goods,^  yet  if  he  make  such  a  sale  with 
the  assent  of  the  debtor,  and  acting  as  his  agent,  it  will  have  the 

I  Miller  v.  Adsit,  16  Wendell,  335. 

-  Poole  V.  Symonds,  1  New  Ilninp.  289 ;  Wliitncy  v.  Farwell,  10  Ibid.  9. 

3  Thayer  v.  Ilutdiinsoii,  1.3  Vermont,  504. 

*  Burrows  v.  Stoddiird,  3  Conn.  160. 
^  Story  on  Bailments,  §  133. 

c  2  Kent's  Com.  568,  note  e. 

"'  Bond  V.  Padelford,  13  Mass.  394 ;  Merrill  v.  Curtis,  18  Maine,  272. 

*  Sibley  v.  Story,  8  Vermont,  15, 

[252] 


CHAP.  XIV.]  BAILMENT   OF  ATTACHED   PROPERTY.  §  371 

same  effect  as  if  the  property  had  been  restored  to  the  defendant, 
and  the  sale  had  been  made  by  him  ;  ^  in  which  case  we  have  seen 
that  the  sale  would  be  valid.^  A  sale  by  a  receipter,  with  the 
assent  of  the  attaching  plaintiff,  has  the  effect  of  dissolving  the 
attachment.^ 

§  370.  The  duties  of  the  bailee  are  sufficiently  apparent  from 
what  has  been  stated.  He  is  bound  to  keep  the  property,  and  to 
return  it  on  demand  to  the  officer,  and  to  take  reasonable  care  of 
it  while  it  is  in  his  custody.  He  cannot  be  required  to  exercise 
more  than  ordinary  care.*  For  any  omission  of  duty  in  any  of 
these  particulars,  he  will  be  responsible  to  the  officer.  But  this 
obligation  to  return  the  property  to  the  officer  is  not  in  all  cases 
absolute .5  As  has  been  before  stated,  it  depends  upon  the  officer's 
liability  for  the  property,  either  to  the  plaintiff,  the  defendant,  the 
owner  of  it,  or  a  subsequent  attaching  creditor,  who,  by  placing  a 
second  writ  in  the  hands  of  the  same  officer  who  seized  the  goods 
in  the  first  place,  has  succeeded  in  obtaining  a  valid  lien  on  the 
property.  If  the  officer  is  not  accountable  for  the  goods  to  any 
one,  he  cannot  make  the  bailee  accountable  to  him.  When  we 
come  to  consider  the  bailee's  defences  against  an  action  by  the 
officer  on  the  receipt,  we  shall  see  more  particularly  what  facts 
discharge  his  liability. 

§  371.  The  remedies  of  an  officer  for  a  disturbance  of  his  pos 
session  of  attached  property  are  not  confined  to  his  retaking  the 
property;  for  that  would  frequently  be  impracticable.  As  his 
special  property  continues  as  long  as  the  attachment  exists,  he 
may  maintain  trover,*^  trespass,'^  and  replevin,^  for  any  violation 
of  his  possession  during  that  period.  And  this,  as  well  where  the 
property  has  been  bailed,  as  where  it  remains  in  his  own  hands ; 
for,  though  he  have  not  the  actual  keeping  of  the  goods,  yet  the 

1  Clark  V.  Morse,  10  New  Hamp.  236. 

2  Denny  v.  Willard,  11  Pick.  519;  Robinson  v.  Mansfield,  13  Ibid.  139. 

3  Eldridgc  v.  Lancy,  1 7  Pick.  35^. 

*  Cross  V.  Brown,  41  New  Hamp.  283. 

*  Story  on  Bailments,  §  132. 

6  Liidden  v.  Leavitt,  9  Mass.  104  ;  Badlam  v.  Tucker,  1  Pick.  389 ;  Lowry  v.  "Walker, 
5  Vermont,  181 ;  Lathrop  v.  Blake,  3  Foster,  46. 

■  Brownell  v.  Manchester,  1  Pick.  232 ;  Badlam  v.  Tucker,  Ibid.  389 ;  "Walker  w. 
Foxcroft,  2  Maine,  270;  Strout  v.  Bradbury,  5  Ibid.  313;  Whitney  u.  Ladd,  10  Ver- 
mont, 165. 

8  Perley  v.  Foster,  9  Mass.  112;  Gordon  v.  Jenney,  16  Ibid.  465. 

^  '  '  [-253] 


§  373  BAILMENT   OF   ATTACHED   PROPERTT.  fCHAP.  HV. 

custody  of  the  bailee  being  that  of  liis  servant  or  agent,  and  his 
special  property  being  still  in  existence,  he  is  regarded  as  having 
the  lawful  possession,  so  as  to  enable  him  to  maintain  an  action 
for  it.^  It  has  been  held,  indeed,  in  Massachusetts,  that  the  officer 
must  sue  for  bailed  property,  and  not  the  bailee;^  but,  as  we  have 
just  seen,  the  weight  of  authority  is  decidedly  against  that  view 
of  the  fcjubject. 

§  372.  Where  a  bailee  fails  to  redeliver  property  according  to 
the  terms  of  his  contract,  the  officer  may  retake  it,  if  accessible ; 
but  no  case  has  met  my  observation  in  which  it  was  held  that  ho 
is  under  obligation  to  do  so  ;  except  one  in  Maine,  where  it  was 
held,  that  the  |)laintifT's  apj)roval  of  the  receipter's  ability,  did 
not  exonerate  the  officer  from  making  clTort  to  fin<l  the  property 
to  respond  to  execution,  or  fiom  tlie  duty  of  bringing  a  suit  on 
the  receij)t.^  His  right  of  action  on  tiie  receipt  accrues  upon  his 
demanding  the  property  from  the  bailee,  and  the  failure  of  the 
latter  to  deliver  it.*  In  cases  where  the  bailment  is  created  V)y  a 
deputy,  his  principal  may  claim  to  have  made  the  bailment  him- 
self, and  may  sustain  an  action  in  his  own  name  upon  the  receipt  ;^ 
or  the  deputy  may  sue  thereon  ;  *  but  it  is  not  in  virtue  of  his 
office,  but  of  the  personal  contract  between  him  and  the  bailee, 
that  the  deputy  is  enabled  to  maintain  the  action.^  If  the  attach- 
ment was  made  by  a  person  specially  authorized  to  serve  the  writ, 
and  a  receipt  given  to  him,  an  action  on  the  receipt  may  bo 
maintained  in  his  name,  after  demand  made  upon  the  receipter, 
by  an  officer  holding  the  execution  in  the  case.^  It  is  not  neces- 
,sary,  in  order  to  the  officer's  maintaining  an  action  on  the  receipt, 
that  he  should  be  still  in  office ;  but  if,  after  his  going  out  of 
office,  the  property  be  legally  demanded  of  him  by  another  officer, 
so  as  to  make  him  liable  for  it,  he  may  demand  it  of  the  bailee, 
and  maintain  an  action  on  the  receipt.^ 

§  373.   As  in  other  cases  of  mere  deposit,  no  right  of  action 

« 

1  Brownell  v.  Manchester,  1  Pick.  232.  2  Ludden  v.  Leavitt,  9  Mass.  104. 

8  Allen  V.  Doyle,  33  Maine,  420. 

*  Page  V.  Thrall,  1 1  Vermont,  230 ;  Scott  v.  Whittemore,  7  Foster,  309. 
5  Davis  V.  Miller,  1  Vermont,  9;  Baker  v.  Fuller,  21  Pick.  3J8;  Smith  v.  Wadleigh, 
18  Maine,  95. 
^  Spencer  v.  Williams,  2  Vermont,  209. 
"  Hutchinson  v.  Parkhurst,  1  Aikens,  258. 
>•      «  Maxfield  v.  Scott,  17  Vermont,  634.  ^  Bradbnrv  v.  Taylor,  8  Maine,  130. 

[254] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED   PROPERTY.  §  373 

accrues  to  the  bailor,  until  after  a  demand  made  upon  the  bailee, 
and  a  faihire  by  him  to  return  the  goods ;  unless  there  has  been  a 
wrongful  conversion,  or  some  loss  by  gross  negligence  on  his  part.^ 
The  necessity  for  a  demand  is  not  dispensed  with  by  proving  the 
receipter's  inability  to  redeliver  ;  -  but  in  such  case  the  necessity 
for  a  demand  at  any  particular  place  is  dispensed  with ;  it  may  be 
made  wherever  the  officei*  finds  the  receipter.^  The  bailee's  lia- 
bility is  not  fixed  instantly  on  demand,  but  he  is  entitled  to  a 
reasonaljle  time  after  demand  to  deliver  the  goods,  and  an  action 
will  not  lie  on  the  receipt,  until  there  has  been  a  neglect,  after 
reasonable  time,  to  comply.*  If  the  bailee  has  suffered  the  prop- 
erty to  go  back  into  the  defendant's  possession,  no  demand  is 
necessary.^  And  it  was  iield,  that  a  demand  was  not  necessary, 
where  the  tenor  of  the  receiptor's  obligation  was,  that  lie  should 
pay  a  sum  of  money,  or  keep  the  property  safely,  and  redeliver  it 
on  demand  ;  and,  if  no  demand  be  made,  that  he  should  redeliver 
it  within  thirty  days  after  rendition  of  judgment  in  the  suit,  at  a 
place  named,  and  notify  the  officer  of  the  delivery.*'  It  is  not 
requisite  that  the  demand  be  made  by  the  officer  who  delivered 
the  pro|)erty  to  the  bailee.  Tlie  terms  of  the  receipt  are  to  be 
taken  with  reference  to  the  subject-matter,  and  only  import  that 
the  bailee  holds  the  property  in  suljjection  to  the  attachment. 
Any  officer,  tlierefore,  holding  the  execution  in  the  case,  suffi- 
ciently represents  the  bailor,  to  make  the  demand,  and  a  delivery 
to  such  officer  would  be  in  effect  a  delivery  to  the  bailor.'^  But  a 
return  on  the  execution  that  the  officer  had  demanded  of  the  re- 
ceipter  a  delivery  of  the  property,  is  no  evidence  of  a  demand.^ 
But  if  another  than  the  attaching  officer  make  the  demand,  hq, 
must  make  known  his  authority  to  do  so,  or  the  demand  and  re- 
fusal will  not  be  considered  as  evidence  of  a  conversion.^ 

*  Story  on  Biiilments,  §  107. 

2  Bickiull  r.  Hill,  33  Maino,  297. 
^  Gilinon-  r.  McNeil,  4t)  Muiiu-,  532. 

*  Jaiiie.-un  v.  Ware,  6  Vermont,  610;  Gilmore  v.  McNeil,  46  Maine,  532. 
«  Webster  V.  Coffin,  14  Mnsv  196. 

®  Shaw  V.  Lau-hton,  20  Maine,  266;  Humphreys  i'.  Cobb,  22  Ibid.  380;  Wentworth 
V.  Leonard,  4  Cnshin;.',  414  ;  Hod^kin  v.  Cox,  7  Ibid.  471. 

■  Davis  i\  Miller,  1  Vermont,  9;  Stewart  v.  Platte,  20  New  Hamp.  476;  Cross  v. 
Brown,  41  Ibid  283. 

8  Bicknell  v.  Hill.  .33  Maine,  297. 

»  Walbrid;,'c  i-.  Smith,  Bray  ton,  173.  In  Phelps  v.  Gilchrist,  8  Foster,  266,  Bell, 
J.,  said  :  "  The  receipter  is  not  l)Ound,  by  law,  or  by  his  contract,  to  deliver  the  pr)p- 
erty  to  any  deputy  sheritf  or  other  officer  who  may  demand  it.     Ue  is  not  bound  to 

[2551 


§  375  BAILMENT   OF   ATTACHED   PROPERTY.  [('HA!'.  XIV. 

§  374.  In  the  New  England  States,  an  attachment  continues  iu 
force  from  the  time  of  tlie  levy  until  a  certain  period  —  in  most, 
thirty  days,  in  Connecticut,  sixty  days  —  after  judgment  in  favor 
of  the  plaintiff.  If,  within  the  specified  period  after  the  judgment, 
the  plaintilf  do  not  cause  execution  to  be  issued,  and  levied  on  tho 
attached  property,  if  accessible,  or,  if  not  accessible,  to  have  it 
deniuuded,  within  that  time,  of  the  oflicl'r  who  attached  it,  l)y  tho 
oflicer  having  the  execution,  the  lien  of  the  attachment  is  lost.* 
If  the  execution  be,  within  that  time,  placed  in  the  hands  of  tho 
officer  who  made  the  attachment,  he  being  still  in  oflice,  tliat  will 
be  sufficient  notice  to  him  that  the  plaintilf  claims  to  have  tho 
attached  goods  apjdied  to  satisfy  the  execution.  When  the  execu- 
tion is  placed  in  the  hands  of  another  officer,  it  is  necessary  that 
within  that  time  deniand  sh(nild  be  made  uj)on  the  attaching 
officer  for  the  goods,  in  order  to  hold  him  liable  for  them.-  It 
was  attemjited  to  extend  this  rule  to  the  receipter,  and  to  hold 
him  discharged,  unless  a  demand  for  the  goods  was  made  upon 
him  within  the  designated  period  after  tho  judgment ;  but  it  was 
held,  that  if  the  officer's  responsil»ility  for  tlic  goods  was  fixed,  so 
as  to  give  him  a  right  to  demand  them  of  the  receipter,  the  de- 
mand upon  the  latter  might  be  made  at  any  time  before  suit 
brought  ui)on  his  receipt.^  In  Vermont,  however,  it  is  required 
that  the  demand  shall  be  made  within  the  life  of  the  execution.* 

§  375.  Care  should  bo  taken  that  the  execution  under  which 
the  demand  is  made  of  the  bailee  should  be  regular  ;  for  it  seems 
he  is  at  liberty  to  inquire  into  that  fact,  and,  where  the  action  is 
figainst  him  for  failing  to  deliver  the  property  to  be  levied  on  to 

take  notice  of  the  authority  of  otlicr  officers  to  have  possession  of  it,  until  it  is  dis- 
tinctly made  known  to  him.  lie  lias  a  ri<,'ht  to  be  satisfieil  that  the  strany:er,  who 
comes  to  him  to  ilemand  the  j^oods,  has  a  legal  ri;,'ht  to  make  the  demand,  so  that  a 
delivery  to  liim  will  discharge  his  obligations  upon  his  receij)!.  Any  such  stranger 
who  comes  to  him  and  calls  for  a  delivery  of  the  property,  without  making  known  tho 
authority  he  has  to  receive  it,  may  be  treated  as  a  person  without  authority.  The  duty 
of  making  known  his  authority  is  on  him  who  assumes  to  make  a  claim  under  it.  Tho 
party  who  is  called  u])on  is  under  no  duty  to  inquire  whether  he  has  authority  or  not." 

1  Howard  r.  Smith,  12  Tick.  202;  Collins  v.  Smith,  16  Vermont,  9;  Pearsons  v 
Tincker,  3G  Maine,  384;  Wetherell  v.  Hughes,  45  Ibid.  61. 

-  Humidircys  v.  Cobb,  22  Maine,  380;  Ayer  v.  Jameson,  9  Vermont,  363;  CoUin» 
V.  Smith,  16  Ibid.  9. 

3  Webster  v.  Coffin,  14  Mass.  196  ;  Colwcll  v.  Richards,  9  Gray,  374. 

*  Bliss  t.  Stevens,  4  Vermont,  88 ;  Allen  v.  Carty,  19  Ibid.  65.     The  Supreme  Court 
of  this  State  once  held  that  the  demand  must  be  made  within  thirty  days  after  judg- 
meat.     Strong  v.  Hoyt,  2  Tyler,  208. 
[256] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED   PROPERTY.  §  376 

satisfy  aa  irregular  execution,  he  may  take  advantage  of  the 
irregularit)-  to  defeat  the  action.  Thus,  where  an  execution  was 
placed  in  an  officer's  liands,  returnable  within  sixty  days,  when 
by  law  it  should  have  been  returnable  within  one  hundred  and 
twenty  days,  and  the  officer,  having  demanded  the  goods  of  the 
bailee,  brought  suit  on  the  receipt,  alleging  a  demand  that  the  exe- 
cution iniijht  he  levied  on  the  goods,  the  declaration  was,  on  de- 
murrer, adjudged  insufficient,  because  the  execution  was  irregular, 
and  the  plaintiff  had  lost  his  claim  on  the  goods  by  failing  to  take 
out  a  regular  execution.^ 

§  370.  It  does  not  appear  that  a  personal  demand  upon  the 
receipter  is  necessary.  If  it  were,  it  would  be  in  his  power  to 
elude  it,  and  thus  avoid  his  responsibility.  It  is  held,  that  one 
who  makes  a  contract  to  deliver  specific  articles  on  demand,  should 
be  always  ready  at  his  dwelling-house  or  place  of  business.  A 
demand  upon  him  personally,  for  goods  which  he  could  not  carry 
about  him,  it  is  considered  would  be  liable  to  more  reasonable 
objection  than  a  demand  at  his  abode,  during  his  absence ;  and, 
therefore,  where  a  receipter  was  absent  from  the  State,  it  was  de- 
termined that  a  demand  made  at  his  dwelling-house,  of  his  wife, 
was  sufficient.^ 

1  Jiiiuf.-ion  f.  radilock,  14  Vermont,  491. 

2  Mason  V.  \W\\r^*,  16  .Muss.  4;VJ.  Sefl  contra,  Phelps  v.  Gilchrist,  8  Foster,  266; 
where  thi-  Siii>erior  Court  of  Niw  llampsliire  take  the  opposite  {jround,  and  say  :  "A 
deniuiul  lor  these  purposes  is  in  its  nature  jn-rsonal.  It  is  u  call  by  a  person  authorized 
to  receive  proiiortv,  for  its  delivery,  made  upon  the  jK-rson  who  is  Iwund  to  make  such 
delivery.  It  must  he  such  that  the  jjerson  re«)uired  to  deliver  the  jiroperty  may  at  once 
diselwrjje  himself  by  yieldiii;;  to  tin-  claim  and  giving'  up  the  proijerty.  Lcavinj,'  a  no- 
tice at  a  party's  house  is  not  of  such  a  character.  It  gives  no  ojjportunity  for  the  party 
to  do  what  is  deniamled,  and  it  would  he  a  sufficient  answer  for  the  defendant  to  make 
in  such  a  case,  that  thou;;h  he  was  notified  to  give  up  the  property,  no  opjKjrtunity  was 
afforded  him  to  comply  with  tiie  notice.  No  reasonable  construction  can  hold  a  re- 
ceipter bound  to  deliver  the  property  at  any  time  and  at  any  place  where  he  may  hap- 
pen to  be,  aiul  still  less  ut  any  i)lacc  where,  after  a  demand  left  at  his  house,  he  may 
happen  to  Ik?  able  to  find  the  attaching  officer,  or  his  agent.  It  forms  no  part  of  the 
contract  of  a  dcjKjsitary,  a  bailee  to  keep  property  without  compnsation,  to  carry  the 
propertv  to  the  deiwsitor,  in  onler  to  n;tum  it.  It  is  entirely  sufficient,  that,  having 
kept  the  property  according  to  his  contract  in  some  reasonable  and  suitable  place,  he  is 
there  ready  to  deliver  it.  If  a  demand  is  made  at  any  other  place,  the  bailee  is  entitled 
to  have  reasonable  time  and  oj>portunity  to  make  the  delivery  at  that  place,  and  to  re- 
quire the  party  who  calls  for  the  property  to  Ik-  there  to  receive  it.  Any  mode  of  mak- 
ing the  demand  which  ])recludes  the  party  from  availing  himself  of  these  rights,  is 
clearly  insufficient,  and  therefore  the  leaving  a  written  demand  at  a  reccipter's  house, 
is  not  evidence  cither  of  a  breach  of  the  receipter's  contract,  or  of  a  conversion  of  the 
property."     Sec  Gilraorc  v.  McNeil,  46  Maine,  532. 

17  [257] 


§  379  BAILMENT   OF   ATTACHED   PROPERTY.  [CMAl*.  XIV. 

§  377.  It  has  been  held  in  New  Hampshire,  that  merely  proving 
a  deniiind  upon  the  bailee  i'ur  the  goods,  without  bringing  to  his 
knowledge  tliat  they  are  demanded  for  the  purpose  of  being  sub- 
jeeted  to  cxeeution  in  the  case  in  whieh  they  were  attached,  does 
hot  establish  a  conversion  by  the  bailee.  The  court  say  :  "  The 
receiptor  is  in  no  default,  unless  it  appears  that  the  object  of  the 
demand  is  brought  at  tlie  time  to  his  notice ;  which  by  no  means 
necessarily  results  from  the  delivery  of  a  written  notice.  A  great 
variety  of  circumstances  may  exist,  which  would  prevent  such  a 
communication  from  being  at  once  attended  to.  No  inference  is 
to  be  drawn  against  a  man  from  his  silence  or  inaction,  unless  it 
appears  that  he  was  aware  of  what  was  said  or  done  to  afTect  his 
interest.  The  burden  is  upon  the  party  who  relies  uj)on  such 
evidence,  to  establish  the  fact  that  the  party  against  whom  he 
desires  an  inference  to  bo  drawn,  knew  and  understood  at  the 
time  the  facts  necessary  to  justify  such  inference."^ 

§  377  a.  Where  one  becomes  a  receipter  for  property  attached 
in  several  cases,  a  demand  uj)on  him  for  the  property  in  one  of 
those  cases  is  suflicient  to  fix  his  liability  in  all  of  them,  if  judg- 
ment and  execution  shall  have  been  obtained  in  them,  so  as  to 
make  the  officer  liable  for  the  forthcoming  of  the  property  on 
execution.^ 

§  378.  "Where  several  persons  jointly  become  receiptors,  a  de- 
mand of  the  goods  from  any  one  of  them  is  sufficient.^  In  such 
a  case,  whore  it  was  agreed  "  that  a  demand  on  any  one  of  them 
should  bo  binding  on  the  whole,"  and  one  of  them  indorsed  on 
the  receipt  an  acknowledgment  that  "  a  due  and  legal  demand  " 
had  been  made  on  him  by  the  officer,  it  was  considered  doubtful 
whether  such  an  admission  was  conclusive  upon  the  other  re- 
ceiptors.* 

§  379.  Trover  or  replevin  will  lie  against  a  receipter,  upon  his 
refusal  or  neglect  to  comply  with  a  demand  for  the  delivery  of  the 
property ;  ^  but  assumpsit  seems  to  be  quite  as  much  resorted  to  in 

1  Phelps  V.  Gilchrist,  8  Foster,  266.  2  Hinckley  v.  Bridgham,  46  Maine,  450. 

8  Griswold  V.  Plumb,  13  Mass.  298. 

*  Fowlcs  V.  Pindar,  19  Maine,  420. 

6  Bissell  V.  Huntinfiton,  2  New  Hamp.  142;  Cargill  v.  Webb,  10  Ibid.  199  ;  Webb 
V.  Steele,  13  Ibid.  230;  Sibley  v.  Story,  8  Vermont,  15  ;  Pettes  v.  Marsh,  15  Ibid.  454; 
DezcU  r.  Odcll,  3  IliU  (N.  Y.'),  215 ;  Stevens  v.  Eames,  2  Foster,  568. 
[258] 


CHAP.  XIV.]  BAIL^^ENT   OF   ATTACHED  PROPFRTY.  §  381 

Buch  cases.  Trespass  will  not  lie.^  Where  the  officer  who  created 
the  bailment  lays  a  second  attachment  on  the  property,  while  in 
the  bailee's  hands,  as  we  have  seen  he  may  do,  he  may  sustain 
the  action,  in  virtue  of  such  second  attachment,  though  that  under 
which  the  property  was  bailed  may  have  been  dissolved.^ 

§  380.  An  acknowledgment  by  the  bailee  of  a  demand  upon 
him  by  the  officer,  is  sufficient  evidence  of  a  refusal  to  deliver  the 
goods,  without  an  accompanying  admission  of  such  refusal.^  The 
delivery  of  goods  by  the  bailee  to  another  person  under  an  adverse 
claim  of  title,  or  a  conveyance  thereof  by  mortgage  to  pay  his  own 
debts,  is  equivalent  to  a  conversion.*  But  if  the  conversion  -be 
with  the  knowledge  and  assent  of  the  officer,  he  cannot  afterwards 
hold  the  receipter  liable  on  his  contract.^ 

§  381.  The  defences  of  which  the  bailee  may  or  may  not  avail 
himself,  in  an  action  on  his  receipt,  next  claim  attention.  It  is 
not  competent  for  him  to  show  that  the  officer  who  levied  the 
attuchinent  was  not  legally  qualified  to  act  as  such,  if  he  was  fully 
in  the  exercise  of  the  office  de  facto  ;  "  nor  can  he  set  up  tliat  the 
goods  were  not  attaclied,  as  stated  in  the  receipt,  though  the  ftict 
be  that  the  attachment  was  a  nominal  one,  and  tliat  the  officer 
never  did  actually  seize  them  ; "  nor  can  he  deny  that  the  goods 
were  delivered  to  him  by  the  officer;'  nor  can  he  impeach  the 
judgment  in  the  attachment  suit,^  or  show  informality  or  irregu- 
larity in  the  attachment.^*'  An  amendment  made  by  the  plaintiff 
in  the  action  in  which  the  property  was  attached,  but  which  did 
not  tend  to  increase  the  liability  of  the  defendant,  will  not  dis- 
charge the  receipter  from  his  accountability  ; "  but  where,  after  an 

»  Woodbury,  J.,  in  Sinclair  v.  TnH)Ox,  2  New  Hamp.  135. 

-  Wliittier  f.  Smith,  II  Muss.  211  ;   Whitney  i'.  Farwell,  10  New  Hamp.  9. 
8  Ciir;;!!!  r.  \\\-\>h,  10  Now  Hamp.  199. 

♦  Baker  r.  Fuller,  21  Tick.  .318  ;  Stevens  v.  Eamcs,  2  Foster,  568. 

'  Stevens  v.  Eaniw,  2  Foster,  568. 

«  Tavlor  V.  Niihols,  19  Vermont,  104.  * 

'  Jewett  r.  Torrey.  1 1  Mass.  219  ;  Lyman  r.  LjTnan,  Ibid.  .317  ;  Morrison  v.  Blodgett, 
8  New  Hamp.  2.38  ;'  Speneer  v.  Williams,  2  Vermont,  209  ;  Lowry  v.  Cady,  4  Ibid.  504  ; 
Allen  r.  Butler.  9  Ibid.  122  ;  Phillips  v.  Hall,  8  Wendell,  610;  Webb  v.  Steele,  13  New 
Hamp.  230 ;  Howes  v.  Spicer,  23  Vermont,  508. 

-  Spencer  r.  Williams.  2  Vermont,  209;  Allen  v.  Butler,  9  Ibid.  122. 
»  Brown  r.  Atwcll,  31  Maine,  351. 

i**  Drew  r.  Livcrmore,  40  Maine,  266. 

11  Smith  V    Brown,  14  New  Hamp.  67;  Miller  v.  Clark,  8  Pick.  412;  Laighton  p 

Ix)rd,  9  Foster,  237  r-.-m 

[2o9] 


§  382  BAILMENT   OF   ATTACHED   PROPERTr.  [CIIAP.  XIV. 

attachment,  an  additional  plaintiff  was  introduced  into  the  suit,  it 
was  held  that,  as  the  officer  could  not  be  made  liable  for  the  prop- 
erty to  the  plaintiff  so  brought  in,  he  could  not  maintain  an  action 
on  the  receipt.*  A  discharge  of  the  defendant  in  biinkruptcy, 
after  judgment  against  him  in  the  attachment  suit,  will  not  dis- 
charge the  bailee;^  even  if  the  petition  in  bankruptcy  was  filed 
before  judgment  was  rendered  ;  ^  nor  the  commitment  of  the 
debtor  on  execution,  after  demand  made  on  the  receiptor  for  the 
goods,  and  his  failure  to  deliver  them,  though  the  plaintiff  bring 
suit  and  recover  judgment  against  the  debtor  and  his  surety,  for 
an  escape,  on  a  bond  given  by  them  for  the  prison  limits ;  *  nor 
will  tlio  fact  that  the  defendant  has  an  execution  against  the 
])laiiitiff  for  a  hirger  amount  than  that  under  which  the  goods 
are  demanded  ; ''  iv->r  will  an  agreement  between  the  plaintiff  and 
the  defendant  in  the  attachment  suit,  that  the  former  shall  not 
enforce  the  receipt,  and  a  forbearance  accordingly  to  enforce  it ;  ^ 
nor  will  the  fact  that  after  failing  to  comply  with  the  demand  of 
the  officer  within  a  proper  time,  the  bailee  at  a  subsequent  time 
showed  the  officer  the  property,  and  told  him  to  take  it.^ 

The  question  has  arisen,  whether  a  bailee  can  set  up  as  a  de- 
fence to  an  action  on  his  receipt,  that  the  property  was  not  by  law 
subject  to  attachment ;  and  it  has  been  held  to  depend  upon  the 
officer's  liability  to  the  defendant  for  a  return  of  the  property  to 
him.  If  he  is  so  liable,  the  bailee  cannot  make  such  a  defence  ; ' 
but  if  the  bailee  gave  the  property  back  into  the  possession  of  the 
defendant,  the  officer  is  no  longer  liable  to  the  latter  for  it,  and 
the  bailee  may  discharge  his  liability  to  him  by  showing  that  the 
property  was  exempt  by  law  from  attachment.^ 

§  382.  If  an  officer,  after  having  delivered  property  to  a  re- 
ceiptor, seize  it  under  another  attachment,  and  take  it  out  of  the 
custody  of  the  receiptor,  this  puts  an  end  to  the  contract  of  bail- 
ment, and  the  officer  cannot  recover  on  the  receipt.*''     But  if  the 

1  Moulton  V.  Chapin,  28  Maine,  505.  •  Smith  v.  Brown,  U  New  Hamp.  67. 

8  Towle  V.  Robin.son,  15  New  Hamp.  408;  Lamprey  v.  Leavitt,  20  Ibid.  544. 
*  Twining  v.  Foot,  5  Gushing,  512. 
^  Jenney  v.  Rodman,  16  Mass.  464. 
8  Ives  V.  Hamlin,  5  Gushing,  534. 

7  Seolt  V.  Whittemore,  7  Foster,  309 ;  Hill  v.  Wiggin,  11  Ibid.  292. 

8  Smith  V.  Gudworth,  24  Pick.  196. 

9  Thayer  v.  Hunt,  2  Allen,  449. 

w  Beach  c.  Abbott,  4  Vermont,  605 ;  Rood  v.  Scott,  5  Ibid.  263. 

[260] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED   PROPERTY.  §  384 

bailee  himself,  after  the  bailment,  levy  an  attachment  on  the  goods 
and  sell  them,  this  is  no  defence  to  the  action  on  his  receipt,  nor 
can  it  be  set  up  in  mitigation  of  damages.^  Where,  however, 
before  the  bailment,  the  property  had  been  attached  in  another 
suit  against  the  same  defendant,  and  upon  the  execution  in  that 
case  had  been  seized  and  sold,  the  bailee  delivering  it  to  the 
officer  for  that  purpose,  it  was  held,  that  as  the  first  attaching 
officer  had  a  better  title  to  it  than  the  second,  the  latter  could  not 
maintain  an  action  on  the  receipt  taken  by  him.  And  it  was  con- 
sidered to  be  immaterial  whether  the  first  attachment  was  fraudu- 
lent or  not,  if  the  bailee  was  not  a  party  to  the  fraud ;  or  whether 
the  bailee  had  notice  or  not  that  the  plaintiff  in  the  suit  in  which 
he  became  bailee,  intended  to  contest  the  first  attachment  on  the 
ground  of  fraud .^ 

§  383.  "Where  a  receipt  for  attached  property  bound  the  makers 
to  return  the  property,  or,  at  their  choice,  to  pay  the  officer  certain 
sums,  when  called  for,  after  judgment  should  be  recovered  on  the 
demands  on  which  the  property  was  attached,  and  it  was  shown 
that  soon  after  the  execution  of  the  receipt  the  property  was 
sold  by  the  officer,  with  the  consent  of  the  plaintiff,  defendant, 
and  receiptor,  and  the  money  paid  into  the  hands  of  the  re- 
ceipter ;  it  was  licld,  that  the  sale  was  an  implied  rescinding 
of  the  contract,  and  that  the  officer  could  neither  maintain  trover 
for  the  property,  nor  assumpsit  upon  the  receipt  for  the  money .^ 

§  384.  A  dissolution  of  the  attachment,  and  a  subsequent  de- 
livery of  bailed  property  by  the  bailee  to  the  person  entitled  to  it, 
discharge  the  bailee  from  liability  to  the  officer.  Therefore,  where, 
under  the  insolvent  law  of  Massachusetts,  an  assignment  by  an 
insolvent  is  declared  to  vest  all  his  property  in  the  assignees, 
"  although  the  same  may  be  attached  on  mesne  process  as  the 
property  of  said  debtor ;  and  such  assignment  shall  be  effectual 
to  pass  all  the  said  estate,  and  dissolve  any  such  attachment"; 
and  a  defendant,  after  an  attachment  and  bailment  of  his  property, 
made  an  assignment  in  insolvency,  and  after  the  assignment  the 
bailee  delivered  the  property  over  to  the  assignees ;  it  was  held, 
that  he  was  not  liable  on  his  receipt.* 

^  Whittier  V.  Smith,  11  Mass.  211.  a  Webster  r.  Harper,  7  New  Hamp.  594. 

'  Kelly  V.  Doxter,  15  Vermont,  310. 

*  Sprague  v.  Wheatland,  3  Metcalf,  416;  Butterfield  v.  Converse,  10  Cashing,  317. 

[261J 


§  388  BAILMENT    OF   ATTACIIKD   PROPERTY.  [ciIAP.  X!V. 

§  385.  Where  a  horse  was  attaclied  and  delivered  to  a  bailee, 
and  before  the  cxpirutiuii  of  tlie  time  limited  for  its  delivery  it 
died,  without  any  fault  of  the  bailee,  he  was  held  not  to  be  an- 
swerable for  its  value.^  In  such  case  no  fault  on  his  part  is  to  be 
presumed.  The  presumption  is  the  other  way  ;  and  if  it  is  sought 
to  charge  him  for  fault,  such  fault  must  be  proved.-  But  where 
the  bailee  permitted  the  horse  to  be  sold  by  the  defendant  to  a 
third  person,  who  took  the  same  into  his  possession,  and  the  horso 
then  died,  its  death  was  held  to  be  no  defence  to  an  action  on 
the  bailee's  receipt.^ 

§  386.  An  officer  is  not  bound  to  accept  from  a  receipter  a 
different  article  from  that  attached,  though  it  be  of  the  same 
diescription,  quality,  and  quantity.*  And  if  a  receipter,  when 
the  attachiMl  j)n)porty  is  demanded  of  him  by  the  officer,  deliver 
to  him  other  like  j)r()perty,  which  is  sold  by  the  officer,  and  being 
insufficient,  the  officer  sue  him  on  the  receipt,  it  is  no  defence 
for  the  receipter  to  say  that  the  j)roj)erty  delivered  was  in  lieu  of 
that  attached,  unless  the  officer  expressly  agreed  it  should  be  so 
received.  In  such  case  it  is  the  duty  of  the  bailee  to  redeliver  the 
same  property  he  had  received,  or  pay  the  value  of  it.  If  he 
sul)stitutcd  other  property,  which  was  sold  on  the  execution,  he 
would  be  liable  still  for  the  property  attached  ;  but  the  proceeds 
of  that  sold  would  extinguish  that  liability  pro  tanto.^ 

§  387.  Wliere  a  partnership  gave  a  receipt  for  property  which 
had  been  attached  on  a  writ  against  a  former  partnership,  com- 
posed in  part  of  the  same  persons,  the  debts  of  which  the  re- 
ceiptors, as  successors  of  the  former  firm  had  agreed  to  pay,  the 
receiptors,  when  sued  on  the  receipt,  were  not  allowed  to  contest 
its  validity  on  the  ground  that  the  property  of  the  new  partner- 
ship was  not  liable  to  attachment  upon  a  demand  against  the 
old  tirm.^ 

§  388.   We  have  seen  that  the  right  of  the  officer  to  retake 

1  Shaw  V.  Laughton,  20  Maine,  266. 

2  Cross  V.  Brown,  41  New  Hamp.  283. 
8  Thayer  v.  Hunt,  2  Allen,  449. 

*  Scott  V.  Wliitteiuore,  7  Foster,  309 ;  Anthony  r.  Comstock,  1  Rhode  Island,  454 ; 
Gilmore  v.  McNeil,  46  Maine,  532. 
6  Sewell  V.  Sowles,  13  Vermont,  171 ;  Smith  i'.  Mitchell,  31  Maine,  287. 
6  Morrison  v.  Blodgett,  8  New  Hamp.  238. 
[262] 


CHAP.  XrV.]  BAILAfENT   OF  ATTACHED   PROPERTY.  §  389 

bailed  property  from  tlie  possession  of  the  bailee  depends  on  his 
liability  therefor,  eitlier  to  the  plaintiff,  the  defendant,  or  another 
creditor  of  the  defendant,  who  has,  through  the  same  officer, 
laid  a  second  attachment  on  the  property,  while  it  was  still  in 
the  bailee's  possession.  The  same  rule  applies  where  the  officer 
sues  on  the  receipt.  Tlie  law  recognizes  the  bailee's  right  to 
permit  the  property  to  go  back  into  the  defendant's  posse"  sion ; 
and  where  he  docs  so,  considers  his  receipt,  in  effect,  as  a  contract 
to  pay  the  demand  upon  which  the  property  was  attached  ;  ^  and 
it  is,  therefore,  well  settled  that,  in  such  case,  the  bailee's  liability 
to  the  officer,  where  there  is  only  one  attachment,  depends  alto- 
gether upon  the  officer's  liability  to  the  plaintiff;  and  that,  if 
the  officer  be  no  longer  liable  to  the  plaintiff,  he  cannot  maintain 
an  action  on  the  receipt.^  And  where  the  officer,  no  longer  liable 
to  either  plaintiff  or  defendant  in  the  action  in  which  the  bailment 
was  created,  seeks  to  enforce  the  receipt  for  the  benefit  of  a 
second  attaching  creditor,  it  is  a  sufficient  defence,  that,  before 
the  second  attachment  was  made,  the  property  had  gone  into 
the  defendant's  possession,  and  that  the  first  attachment  was 
satisfied  before  the  officer  demanded  the  property  of  the  bailee.* 

§  389.  If  an  officer  attach  projicrty  as  being  the  defendant's,  he 
may  notwith.standing  sliow,  in  an  action  by  the  plaintiff  against 
him  for  not  having  it  in  hand  to  satisfy  the  execution  in  the  case, 
that  it  did  not  in  fact  belong  to  the  defendant.*  This  proceeds 
from  the  oljvious  princijjlo,  that  the  officer  shall  not  be  responsible 
to  the  plaintiff  for  not  doing  that  which  he  was  under  no  legal 
obligation  to  do;  and  as  he  is  under  no  obligation  to  keep  the 
property  of  one  man  to  answer  the  debt  of  another,  he  cannot  be 
made  liable  for  not  doing  so.  If,  then,  in  such  a  case  the  property 
has  been  bailed,  it  being,  as  we  have  seen,  a  well-settled  principle 
that  the  bailee's  liability  to  the  officer  depends  upon  the  officer's 
accountal)ility  for  the  property  to  some  one  else,  it  follows,  that, 
where  the  property  is  not  the  defendant's,  the  officer  should  not 

1  Whitney  r.  Farwcll,  10  New  Hamp.  9. 

2  Fisher  r.  Bartlett,  8  Maine,  122  ;  Carr  v.  Farley,  12  Ibid.  328;  Sawyer  v.  Mason, 
19  Ibid.  49;  Moulton  v.  Chapin,  28  Ibid.  50.5;  Lowrv  v.  Stevens,  8  Vermont,  1L3; 
Jameson  v.  Paddock,  14  Ibid.  491  ;  Frost  v.  Keilo;,';:,  2.3  Ibid.  308. 

8  Whitney  v.  Farweil,  10  New  Hamp.  9;  Hill  r  Wi<,';,Mn,  11  Foster,  292. 

♦  Fuller  r.  Holdcn,  4  Mass.  498;  Denny  i-.  Willard,  11  Pick.  519;  Canada  ».  South- 
wick,  16  Ibid.  556;  Dewey  v.  Field,  4  Metcalf,  381 ;  Sawyer  v.  Mason,  19  Maine.  49: 
Burt  V.  Perkins,  9  Gray,  317. 

[263] 


§  391  BAILMENT   OF   ATTACHED   PROPERTY.  [CHAP.  XIV. 

be  allowed  to  hold  the  receipter  answerable  for  it,  ii  it  has  gone 
into  the  possession  of  tlie  rightful  owner.  The  more  fact  that,  at 
the  time  of  the  attachment,  the  property  did  not  belong  to  the  , 
defendant,  will  not,  of  itself,  be  a  sufficient  defence  against  the 
bailee's  liability  on  his  receipt ;  for  the  officer,  being  liable  to  tho 
true  owner,  must  obtain  possession  of  the  property  in  order  to 
restore  it.^  But  where  it  appears  not  only  that  the  property  be- 
longed, but  has  been  delivered,  to  a  third  person,  it  is  unquestion- 
able that  the  officer  cannot  maintain  an  action  against  the  bailee 
for  it.^  In  Louisiana,  it  would  seem  not  to  be  necessary  to  show 
that  the  property  liad  gone  back  into  the  hands  of  the  actual 
owner,  if  it  was  in  the  hands  of  those  wlio  were  entitled  to  the 
possession  of  it ;  as  where  it  was  consigned  by  the  owner  to  com- 
mission merchants,  and  the  latter  took  it  from  tiie  possession  of 
the  officer,  upon  executing  a  bond  to  return  it ;  there,  the  com- 
mission merchants  being  entitled  to  retain  tneir  possession,  which 
was  in  legal  contemplation  the  possession  of  the  owner,  would  not 
be  required  to  show  that  the  owner  had  tho  actual  custody  of  the 
property.^ 

§  390.  Wliere,  however,  in  a  receipt  which  admitted  the  prop 
erty  to  have  been  attached  as  tiie  defendant's,  the  following  clause 
was  embodied  —  "and  we  further  agree  that  this  receipt  shall  be 
conclusive  evidence  against  us  as  to  our  receipt  of  said  property, 
its  value  before  mentioned,  and  our  liability  under  all  circum- 
stances to  said  officer  for  the  full  sura  above  mentioned"  —  it  was 
held,  that  the  receiptors  would  not  be  allowed  to  avoid  their  liar 
bility,  by  proving  that  the  property  was  not  the  defendant's.* 

§  391.  Another  important  question  here  arises,  —  how  far  is 
the  receipter  estopped  by  his  receipt  from  asserting  property  in 
himself  in  the  goods  attached,  when  they  belong  to  him  ?  This 
depends  upon  the  circumstances  under  which  he  undertakes  to 
assert  it.     If  sued  by  the  defendant  for  a  return  of  the  goods, 

1  Fisher  v.  Bartlctt,  8  Maine,  122  ;  Scott  v.  Whittemore,  7  Foster,  309  ;  Clark  v.  Gay 
lord,  24  Conn.  484. 

2  Learned  v.  Bryant,  13  Mass.  224  ;  Fisher  v.  Bartlett,  8  Maine,  122 ;  Sawyer  r.  Ma- 
son, 19  Ibid.  49;  Stanley  r.  Drinkwater,  43  Ibid.  468;  Quine  v.  Mayes,  2  Robinson 
(La.),  510;  Lathrop  v.  Cook,  14  Maine,  414;  Scott  v.  Whittemore,  7  Foster,  309; 
Clark  V.  Gaylord,  24  Conn.  434;  Burt  v.  Perkins,  9  Gray,  317. 

8  Quine  v.  Mayes,  2  Robinson  (La),  510. 
*  Penobscot  Boom  Corporation  v.  Wilkins,  27  Maine,  345, 
[264] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED   PROPERTY.  §  392 

after  dissolution  of  the  attachment,  his  receipt  does  not  conclude 
him  from  showing  that  they  belonged  to  himself,  and  not  to  the 
defendant.^  If  the  receipter,  after  having  delivered  up  the  prop- 
erty according  to  his  contract,  bring  replevin  against  the  officer 
for  it,  he  is  not  estopped  from  maintaining  the  action,  by  reason 
of  having  given  the  receipt,  and  therein  having  acknowledged  that 
the  articles  attached  were  the  property  of  the  defendant ;  for  the 
engagement  was  performed,  and  the  estoppel  could  not  be  per- 
mitted to  extend  beyond  the  terms  and  duration  of  the  con 
tract.^ 

§  392.  But  as  between  him  and  the  officer,  in  an  action  by  the 
latter  on  the  receipt,  where  the  receipt  admits  the  goods  to  be  the 
defendant's,  or  to  have  been  attached  as  his,  it  has  been  repeatedly 
held,  that  the  bailee  is  estopped  by  the  receipt  from  setting  up 
property  in  himself.^  And  in  New  York,  it  was  so  ruled  in  a  case 
where  the  receipt  contained  no  such  admission,  but  simply  an  ac- 
knowledgment of  having  received  the  property,  and  a  promise  to 
redeliver  it  at  a  certain  time  and  place.*  Later  cases,  however, 
qualify  this  general  rule.  While  it  is  conceded  on  all  hands  that 
a  receipter  who  conceals  from  the  officer  his  ownership  of  the 
property,  and  suffers  it  to  be  attached  as  the  defendant's,  thereby 
preventing  the  officer,  perhaps,  from  attaching  other  property,  is 
precluded,  when  sued  on  the  receipt,  from  setting  up  property  in 
himself;  yet  it  is  considered  to  be  materially  diffi^rent  where  he 
makes  known  to  the  officer,  at  the  time  of  the  attachment,  that  the 
property  is  his,  and  not  the  defendant's.  In  such  case  it  is  held 
in  Massachusetts,  that  the  bailee  may  set  up  property  in  himself, 
not  as  a  bar  to  the  action,  but  as  showing  the  officer  entitled  only 
to  nominal  damages  ;  ^  while  in  Vermont  and  in  California  it  is 
considered  to  constitute  a  full  defence.^  And  in  New  Hampshire 
it  was  held,  that  the  giving  of  a  receipt  for  the  property  by  the 

1  Barron  v.  Cohlciph,  1 1  New  Hamp.  557. 

2  Johns  f.  Church,  12  Tick.  557  ;  Lathrop  v.  Cook,  14  Maine,  414. 

»  Johns  r.  Church,  12  Pick.  557  ;  Robinson  v.  Mansfield,  13  Ibid.  139;  Burslej  ». 
Hamilton,  15  Ibid.  40  ;  Dewej  v.  Field,  4  Metcalf,  381  ;  Sawyer  i;.  Mason,  19  Maine, 
49  ;  Tenobscot  Boom  Corj^ration  v.  Wiikins,  27  Ibid.  345  ;  Barron  i;.  Cobleigh,  II  New 
Ilamp.  557  ;  Drew  v.  Livermore,  40  Maine,  266. 

♦  Dezdl  V.  Odell,  3  Hill  (N.  Y.),  215. 

'  Bursley  v.  Hamilton,  15  Pick.  40. 

0  Adams  v.  Fox,  17  Vermont,  361 ;  Bleven  v.  Freer,  10  California,  172.  See  Jones 
V.  Gilbert.  13  Conn.  507. 

[265] 


§  394  BAILMENT   OF   ATTACHED   PROPERTY.  [ciIAP.  XIV. 

owncft  of  it,  is  -no  bar  to  au  action  of  trespass  by  him  against  the 
attaching  officer.^ 

§  393.  The  only  remaining  topic  of  consideration,  in  this  con- 
nection, is  the  measure  of  the  officer's  recovery  in  the  action 
against  the  bailee.  Whether  he  sluill  recover  only  noniinal  dam- 
ages, or  the  full  value  of  the  property,  or  the  amount  of  tho 
plaintiff's  demand,  not  exceeding  the  value  of  the  property,  is  to 
be  determined  hy  the  facts  of  each  case.  Where,  at  the  institu- 
tion of  his  suit,  he  has  a  full  right  of  action  against  the  receipter, 
but  afterward,  and  before  obtaining  judgment,  he  is,  by  the  plain- 
tiff's failure  to  take  the  needful  steps,  released  from  responsibility 
to  him,  and  at  the  same  time  the  property  has  gone  back  into  the 
defendant's  possession ;  as  he  is  no  longer  liable  to  either  jJaintiflf 
or  defendant,  he  can  recover  only  nominal  damages  agahist  the 
receipter  .2 

§  394.  Where  the  value  of  the  property  is  stated  in  the  receipt, 
it  is  not  to  be  considered  as  descriptive  of  the  property,  but  as  a 
part  of  the  contract,  and  as  constituting  a  stipulation  for  a  rule 
of  damages  against  the  receipter  in  case  of  a  non-delivery  of  the 
property  ;  and  hence  an  officer  will  not  be  allowed  in  an  action  on 
the  receipt,  wliether  in  form  ex  contractu  or  ex  delicto,  to  give  evi- 
dence that  the  property  was  of  greater  value  than  that  stated  in 
the  receipt; 3  and  of  course  the  receipter  cannot  give  evidence 
that  it  was  of  less  value.'*  In  such  case,  where  all  the  articles  are 
valued  at  a  gross  sum,  the  receipter  cannot  avoid  his  liability,  pro 
tanto,  by  tendering  to  the  officer  part  of  the  goods,  unless  he  has 
a  reasonable  excuse  for  not  delivering  the  residue.^  But  if  the 
value  of  each  article  is  separately  stated  in  the  receipt,  and  the 
bailee  tenders  part  of  them  to  the  officer,  the  latter  can  recover 
only  for  the  articles  not  tendered,  accordmg  to  their  admitted 
value. ^ 

*  Morse  v.  Hurd,  17  New  Hamp.  246. 

2  Norris  v.  Bridgham,  14  Maine,  429;  Moulton  v.  Chapin,  28  Ibid.  505;  Farnham  v. 
Cram,  15  Ibid.  79. 

8  Parsons  v.  Strong,  13  Vermont,  235  ;  Drown  v.  Smith,  3  New  Hamp.  299 ;  Remick 
V.  Atkinson,  11  Ibid.  256 ;  Jones  v.  Gilbert,  13  Conn.  507. 

*  Smith  I'.  Mitchell,  31  Maine,  287. 

6  Drown  v.  Smith,  3  New  Hamp.  299 ;  Remick  v.  Atkinson,  11  Ibid.  256. 

*  Remick  ?;.  Atkinson,  1 1  New  Hamp.  256. 

[266] 


CHAP.  XIV.]  BAILMENT   OF   ATTACHED  PEOPERTY.  §  396 

§  395.  Whether  the  officer  can  recover  the  full  value  of  the 
property,  depends  upon  his  being  liable  to  that  extent  for  it  to 
some  one  else.  If  the  amount  of  tlie  judgment  in  the  attachment 
suit  be  greater  than  the  value  of  the  property,  then  the  measure 
of  the  recovery  is  the  value  of  the  property.^  If  it  has  gone  back 
to  tlie  defendant's  possession,  and  its  value  exceeded  the  amount 
of  the  judgment  in  tlic  attachment  suit,  the  rule  of  damages  is  the 
amount  of  the  judgment  and  costs  •,^  but  if  the  amount  of  the  at- 
tachments upon  it  is  less  than  the  value  stipulated,  the  recovery 
cannot  be  for  a  greater  amount  than  that  necessary  to  satisfy  the 
attachments.^  But  where  the  bailee  has  converted  the  property  to 
his  own  use,  or  still  liolds  it,  the  officer  is  not  only  autliorizcd,  but 
obliged,  to  take  judgment  for  the  full  value ;  and  if  he  take  it  for 
less,  he  will  be  liable  to  the  defendant  for  the  deficiency.* 

§  39G.  The  judgment  which  an  officer  may  recover  against  a 
receipter  is  merely  collateral  to  the  debt  due  from  the  defendant 
to  the  plaintiff  in  the  attachment,  and  for  the  benefit  and  security 
of  the  officer;  and. when  the  defendant  has  no  claim  on  him,  and 
his  obligation  to  the  plaintiff  is  removed,  by  the  payment  of  the 
debt  for  whicli  the  attachment  issued,  the  judgment  becomes  a 
mere  dead  letter,  and  cannot  be  enforced.^  But  if  the  debt  be 
satisfied  after  the  officer  has  sued  on  the  receipt,  that  will  not  bar 
his  action,  but  he  will  still  be  entitled  to  recover  nominal  dam- 
ages.^ 

1  Cross  V.  Brown,  41  New  Hamp.  283. 

2  Cross  V.  Bro\\'Ti,  41  New  llaiiip.  283. 
'  Farnhiiin  v.  Cram,  15  Maine,  79. 

*  Bissell  1-.  Huntin-rton,  2  New  Hamp.  142  :  Whitney  v.  Farwell,  10  Ibid.  9;  Sawyer 
0.  Mason,  19  Maine,  49;  Catiin  v.  Lowrcy,  1  D.  Chipman,  396. 

6  PaiUloek  v.  Palmer,  19  Vermont,  .581  ;  Brown  v.  Crockett,  22  Maine,  537. 

•  Stewart  v.  Platts,  20  New  Hamp.  476. 

[2671 


§  398  ATTACHMENTS   IMPROMDENTLY   ISSUED,  [cHAl'.  XV. 


CHAPTER    XV. 

ATTACHMENTS  IMPROVIDENTLY   ISSUED,    AND    THE    MEANS    OF   DEFEAT- 
ING THEM. 

§  397.  Issuing  an  attachment  improridcntlj,  is  to  bo  distin- 
guished from  issuing  it  irregularly.  In  the  latter  case,  the  defect 
appears  upon  the  face  of  the  proceedings,  and  may  be  tiiken  ad- 
vantage of  l)y  a  motion  to  quash  or  dissolve.  In  the  former,  all 
the  preliminary  steps  may  be  regular,  and  yet  the  attachment 
have  been  improvidontly  granted,  because  the  allegations  on 
which  it  issued  were  untrue.  Such  is  the  dilforence  between 
these  two  classes  of  cases.* 

§  398.    Where,  as  in  the  New  England  States,  under  the  ordi- 

1  In  Ixjvior  v.  Gilpin,  6  Danft,  .121,  the  Court  of  Appeals  of  Kentucky  use  the  follow- 
int:  lanpuu-,^; :  "  Ui>on  the  face  of  the  record  of  this  attachment,  that  is,  upon  the  face 
of  the  lM)n(l  and  atUchmunt  itself,  there  can  be  no  question,  nor  is  any  made,  as  to  it« 
having,'  been  issued  by  the  proper  justice,  in  the  pnjjH^r  county,  and  in  a  projH-r  case,  so 
far  as  the  case  is  to  be  made  out  to  the  justice,  in  order  to  authorize  the  emanation  of 
the  process,  or  so  far  as  it  is  to  Iks  state«l  in  the  process  itself,  in  order  to  show  its  va- 
lidity. In  issuing  the  attachment,  therefore,  the  justice  has  complied  with  every  requi- 
sition of  the  law,  and  upon  the  face  of  the  record  there  is  no  want  of  jurisdiction  to 
issue  process  in  the  case;  no  misjudpment  in  deciding  upon  the  facts  necessary  to 
authorize  the  ]iroccss ;  no  excess  of  jurisdiction,  either  in  the  nature  of  the  process 
issued,  or  in  issuing  it  in  n  case  in  which  the  law  does  not  authorize  such  prwess  to  be 
sued  out.  For  the  justice  is  not  made  the  judge  of  the  facts,  nor  is  he  to  inquire  into 
them,  except  as  they  are  presented  in  the  statement  of  the  applicant  for  the  writ,  and 

as  thus  presented  they  are  sufficient The  authority  of  the  justice  do<'S  not  depend 

in  any  degree  ujwn  the  truth  of  the  statement  made  by  the  ap|ilicaBt,  and  on  the  ground 
of  which  the  attachment  issues,  but  upon  the  sufficiency  of  the  statement  itself  when 
compared  with  the  law.  To  prove  the  falsity  of  a  statement  which  is  sufficient  m  itself, 
does  not,  therefore,  disprove  the  authority  or  jurisdiction  of  the  justice,  nor  prove  nor 
make  the  process  void  for  want  of  authority.  Such  proof  makes  out  a  ca.se  of  process 
undulyor  improperly  issued,  not  on  the  ground  of  want  of  authority  in  the  officer  to 
issue  it,  but  on  the  ground  that  the  statement  which  gave  the  authority  in  the  particular 
ca.se  is  untrue  as  to  a  fact,  which,  if  truly  stated,  would  have  shown  that  there  was  no 
authority  in  the  particular  case.  Such  proof  might  perhaps  be  sufficient,  in  a  direct 
proceeding  for  the  purpose,  to  authorize  the  annulment  or  vacation  of  the  process ;  it 
would  certainly  be  sufficient  to  abate  the  attachment  on  proper  pleading.  But  until  it 
is  set  aside,  or  in  some  manner  annulled,  it  remains  a  part  of  the  record  of  the  proceed- 
ing, — functus  officio,  it  is  true,  but  unaffected  by  the  extraneous  matter,  and  being  per- 
fect and  regular  in  itself,  and  still  showing  on  its  face  that  it  was  issued  by  legal  au- 
thority, it  is,  therefore,  still  sufficient  to  justify  the  immediate  acts  which  it  commanded, 
though  not  tending  to  justify  the  illegal  act  of  obtaining  it  upon  a  false  statement,  or 
the  actual  injury  consequent  upon  that  act." 
[268] 


CHAP.  XV. J     AND  THE  MEANS  OF  DEFEATING  THEM.         §  400 

nary  process  of  summons  an  attachment  may  be  made,  if  the 
plaintiff  so  directs,  it  is  of  no  importance  to  the  defendant  to  be 
allowed  to  impeach  the  attachment  for  improvidence ;  but  where 
as  elsewhere  is  universally  the  case,  an  affidavit  alleging  certain 
facts  is  required,  to  authorize  an  attachment  to  issue,  this  privi- 
lege is  of  great  value  to  defendants,  who  might  otherwise  be 
remedilossly  ruined  by  the  recklessness  or  bad  faith  of  creditors ; 
and  it  is  in  many  States  secured  to  them  by  statute. 

§  390.  There  can  hardly  be  room  for  doubt  that,  without  the 
aid  of  express  statutory  provision,  a  defendant  may,  in  one  form 
or  another,  contest  the  truth  of  the  grounds  alleged  by  the  plain- 
tiff for  obtaining  the  attachment.  In  Mississippi,^  Arkansas,^  and 
Texas,^  it  is  not  so ;  but,  as  the  following  review  will  exhibit,  this 
doctriiie  is  uphold  in  New  York,  PtMinsylvania,  Xew  Jersey,  Mary- 
land, South  Canjlina,  Tennessee,  Kentucky,  Indiana,  and  Illinois. 
The  modes  by  which  the  contest  may  be  instituted  are  different, 
as  will  be  seen  in  the  succeeding  sections,  setting  forth  as  well 
those  used  without,  as  those  used  with,  statutory  authority. 

§  400.  In  Xew  York,  prior  to  the  adoption  of  the  Code  of  Pro- 
cedure, the  mode  of  defeating  an  attachment  iraprovidently  issued, 
was  by  supersedeas,  obtained  from  the  Supreme  Court,  on  affida- 
vits fil.'d  by  the  defendant,  showing  the  falsity  of  that  on  which 
the  writ  was  olitained.  That  court,  at  an  early  day,  asserted  its 
jurisdiction  in  such  cases,*  and  subsequently  constantly  exercised 
it.  Therefore,  where  an  attachment  was  obtained  on  an  allega- 
tion that  the  defendant  had  departed  the  State,  with  the  intent 
of  avoiding  arrest,  and  of  defrauding  his  creditors,  a  supersedeas 
was  awarded,  upon  the  relation  of  the  defendant,  showing  that  he 
had  not  departed  the  State,  but  had  openly  made  a  journey  within 
it.*     So  where,  from  the  evidence  given  by  the  defendants,  it  ap- 

1  Smith  r.  Ilcrrine,  10  Smedes  &  Marshall,  518. 

*  Tnvlor  r.  Hitanls  9  Arkansas  (4  En-lish),  .378;  Mandel  v.  Pcet,  18  Ibid.  236. 

"  Cloud  I'.  Smith,  1  Texas,  611.  In  Alabama  it  was  at  one  time  held,  that  the  alle- 
gations of  the  affidavit  were  traversable,  and  might  be  investigated  and  decided  by  a 
jury.  Brown  r.  Mitssey,  .3  Stewart,  226.  This  opinion,  however,  wa.s  afterwards  in 
effect  ovcrrnled,  in  Middlebiook  v.  Ames,  5  Stewart  &  Porter,  158.  Subsequently,  by 
statute,  the  rlefendant  was  precluded  from  contesting  the  truth  of  the  affidavit ;  and 
thou;:h  the  statute  referred  only  to  ori-inal  attachments,  it  was  held,  in  Jones  v.  O'Don- 
nell,  9  Alabama,  695,  to  apply  as  well  to  an  ancillary  attachment,  taken  out  in,  and  in 
aid  of,  a  .suit  already  instituted  by  summons. 

*  Lenox  o.  Ilowland,  3  Caincs,  323.  *  Ex  parte  Chipman,  1  Wendell,  66. 

[269] 


§  401  ATTACHMENTS   IMPROVIDENTLY   ISSUED,  [CIIAP.  XV, 

peared  tlmt  tlioy  luul  not  absconded,  and  were  not  concealed,  at 
the  time  tlie  petition  for  an  attachment  was  presented.^ 

lu  this  .^tatc,  since  the  adoption  of  the  Code  of  Procedure,  tlio 
courts  have  asserted  their  inherent  right  to  control  their  owu 
process,  and  to  inquire  into  the  grounds  upon  which  it  has  issued, 
and  to  receive  proofs  in  relation  thereto,  on  special  motion,  though 
the  Code  gives  no  authority  for  such  a  proceeding,^ 

On  such  a  motion  the  defendant  may  introduce  affidavits  against, 
and  the  i)laintifT  supplemental  affidavits  in  support  of,  the  ground 
of  attachment  sworn  to  in  the  first  instance  ;  and  if  by  all  the 
affidavits  sufficient  appears  to  warrant  the  issuing  of  the  attach- 
ment, the  court  will  not  set  it  aside  for  any  insufficiency  in  tho 
affidavit  on  wliich  it  issued,* 

A  motion  to  vacate  an  attachment  because  the  ground  upon 
wliich  it  was  issued  was  not  true,  must,  in  that  State,  bo  made  at 
the  first  opportunity,  or  an  excuse  be  shown  for  not  so  making  it. 
It  comes  too  late  after  judgment,*  But  where  it  was  made  beforo 
judgment,  and  was  referred  by  the  court  to  a  referee  to  lk?ar  the 
proofs,  and  report  his  opinion  thereon,  and  before  his  report 
was  made  judgment  was  entered,  it  was  held,  that  the  motion 
might  be  heard  and  passed  upon  after  the  entry  of  the  judg- 
ment.^ 

§  401.  In  Pennsylvania,  it  was  early  held,  that  the  court  would 
make  inquiry  in  attachment  cases  into  the  plaintiff's  cause  of  ac- 
tion, as  in  cases  of  capias^  and  where  a  sufficient  cause  did  not 
appear,  would  dissolve  the  attachment,^  This  right  of  inquiry  in 
such  cases  is  now  firmly  established  in  that  State,  and  the  practice 
has  been  regulated  by  several  reported  decisions.'^  It  is  the  prac- 
tice there,  too,  to  allow  the  defendant  in  a  domestic  attachment, 
to  show  by  affidavits,  that  he  had  not  absconded,  as  alleged,  and 
upon  the  same  being  satisfactorily  shown,  to  dissolve  the  attach- 

1  Matter  of  Warner,  3  Wendell,  424. 

'^  Morjjan  v.  Avery,  7  Barbour,  656  ;  Genin  v.  Tompkins,  12  Ibid.  26.*). 

*  Caminann  v.  Tompkins,  1  Code  Reports,  12;  St.  Amant  v.  De  Beixcedon,  3  San- 
ford  Sup.  Ct.  703. 

*  Lawrence  v.  Jones,  15  Abbott  Pract.  R.  110.     See  Foster  v.  Dryfus,  16  Indiana,  158. 
6  Thompson  v.  Culver,  15  Abbott  Pract.  R.  97;  8.  c.  38  Barbour,  442;  24  Howard 

Pract.  R.  286. 
6  Vienne  v.  M'Carty,  1  Dallas,  165. 
/f  Vienne  v.  M'Carty,  1  Dallas,  165,  note  a,  and  the  cases  there  cited. 

[270] 


CHAP.  XV.]     AND  THE  MEANS  OF  DEFEATING  THEM.         §  404 

ineut.  In  a  case  of  tliis  description,  the  court  said,  "  The  aflfi- 
davit  on  which  a  domestic  attachment  is  grounded,  has  never 
been  held  to  be  conclusive ;  such  a  doctrine  would  be  attended 
with  the  most  pernicious  consequences";  and  intimated  that  the 
plaintiff  might  sustain  his  affidavit  by  contrary  proofs  to  those 
presented  by  the  defendant.^ 

§  402.  In  New  Jersey,  the  power  and  duty  of  the  court  to 
inquire  into  tlje  misuse  and  abuse  of  this  process,  was  declared 
to  rest  on  the  most  ancient  and  established  principles,  and  to 
be  as  applicable  to  writs  of  attachment  as  any  other  process. 
There  the  truth  of  the  allegations  on  which  the  writ  issues  is 
brought  up  on  motion  to  dissolve  the  attachment,  sustained  by 
affidavits.'^ 

§  403.  In  ^laryland,  it  was  decided,  that  every  fact  is  cogniza- 
ble by  the  court,  which  would  show  that  the  attachment  issued 
improvidently ;  and  evidence  dehors  the  proceedings  might  be  re- 
sorted to,  and  proof  made  to  the  court  ;  ^  either  under  a  motion  to 
quash  or  under  a  plea.* 

§  404.  In  South  Carolina,  the  defendant  may  contest  the  alle- 
gations in  the  affidavit,  and  if  successful  in  disproving  them,  the 
attachment  will  be  dissolved.  As  to  the  mode  of  accomplishing 
this,  the  decisions  appear  not  to  be  quite  consistent.  In  a  case 
of  domestic  attachment,  it  was  held,  that  "  a  shorthand  method 
of  qua.shing  Ijy  motion"  was  inadmissible:^  afterwards,  in  a  case 
of  foreign  attachment,  this  course  was  allowed;^  though  in  a 
subsequent  case  it  was  considered  that,  whatever  may  have  been 
the  practice,  a  judge  ought,  in  a  doul>t('ul  case,  to  refuse  a  motion 
to  quash  an  attachment  by  an  affidavit ;  and  the  propriety  of  a 
plea  in  abatement,  and  a  trial  of  the  issue  by  a  jury,  was  recog- 
nized.' 

1  Boycs  V.  Coppinjrer,  1  Yt-ates,  277. 

*  Branson  v.  Shinn,  1  Green,  250 ;  City  Bank  v.  Merrit,  Ibid.  131 ;  Day  v.  Bennett,  3 
Harrison,  287.  , 

*  Campheil  v.  Morris,  3  Harris  &  M'Henry,  535. 

*  Lanibden  c.  Bowie,  2  Maryland,  334 ;  Cover  r.  Barnes,  15  Ibid.  576. 
*  Havis  r.  Trapp,  2  Nott  &  M'Con!,  1.30. 

8  Wheeler  f.  Degnan,  2  Nott  &  M'Cord,  323. 
'  Shrewsbury  v.  Pearson,  1  M'Cord,  331. 

[271]. 


§  407  ATTACIIMEXTS  IMPROMDENTLY  ISSUED,  [cHAP.  XV. 

§  405.  In  Tennessee,*  Kentucky ,2  Indiana,*  and  Illinois,*  it  is 
held,  that  the  defendant  may  plead  in  abatement,  traversing  the 

allegations  of  the  affidavit. 

§  400.  The  preceding  sections  show  the  views  of  this  subject 
entertained  by  the  courts  of  the  several  States  in  which  it  has 
been  considered,  unconnected  with  statutory  provisions.  Before 
proceeding  to  refer  to  such  provisions  existing  in  other  States, 
and  the  decisions  thereunder,  it  should  be  remarked,  that  in 
whatever  mode  a  contest  of ^  the  truth  of  the  affiilavit  may  bo 
allowed,  it  should  precede  the  defendant's  appearance  and  plea 
to  the  action.  If  he  have  already  pleaded  to  the  action,  or  do  so 
at  the  same  time  that  he  pleads  to  the  aflidavit,  or  afterwards,  ho 
cannot  controvert  the  affidavit.^  And  in  no  case  will  he.  be  al- 
lowed to  give  evidence  to  contradict  the  affidavit,  unless  he  have 
pleaded  to  it  in  abatement,  where  that  is  the  mode  of  contesting 
it."  And  in  Illinois,  applying  the  common  law  rule  in  regard  to 
pleas  in  al)atement,  it  was  held,  that  this  plea  could  not  be  filed 
after  a  continuance.' 

§  406  a.  Where  an  attachment  has  been  vacated  by  the  court, 
after  an  inquiry  into  the  merits  of  the  ground  upon  which  it  was 
issued,  another  attachment  by  the  same  party,  on  the  same  ground, 
where  no  new  facts  are  presented,  cannot  be  sustained.  "The 
defendant  is  not  to  be  continually  vexed  by  the  same  application  ; 
nor  are  tlie  same  or  diffijrent  tril)unals  to  hear  and  decide  upon 
the  same  matters  more  than  once."  ^ 

§  407.  A  plea  in  abatement,  where  allowed,  must  directly  and 
fully  negative  the  allegations  of  the  affidavit.  Thus,  where  the 
affidavit  stated  that  the  defendant  "  was  removing  and  about  to 

1  Harris  v.  Taylor,  3  Sneed,  536;  Isaacks  v.  Edwards,  7  Humphreys,  465;  Dunn  v. 
Myrcs,  3  Ycrgcr,  414. 

2  Mcggs  V.  Shaffer,  Hardin,  65;  Moore  v.  Hawkins,  6  Dana,  289;  Lovier  v.  Gilpin, 
Ibid.  321. 

8  Voorhees  v.  Hoagland,  6  Blackford,  232 ;  Abbott  v.  Warriner,  7  Ibid.  573. 

*  Bates  V.  Jenkins,  1  Illinois  (Breesc),  Appendix,  25. 

6  Meggs  v.  Shaffer,  Hardin,  65 ;  Lindslcy  v.  Malone,  23  Penn.  State,  24 ;  Hatry  v. 
Shuman,  13  Missouri,  547;  Cannon  v.  McManus,  17  Ibid.  345;  Collins  v.  Nichols,  7 
Indiana,  447.  , 

6  Moore  r.  Hawkins,  6  Dana,  289. 

T  Archer  v.  Claflin,  31  Illinois,  306. 

8  Schleniiner  v.  :Myerstein,  19  Howard  Pract.  E.  412. 
[272] 


CHAP.  XV.]  AND   THE  3IEANS   OF  DEFEATING   THEM.  §  409 

remove  his  property  from  the  State,"  and  the  defendant  pleaded 
that  "  he  was  not  removing  from  the  State,  nor  was  he  removing 
his  property  from  the  State,"  it  was  considered  to  be  no  answer  to 
the  affidavit,  and  demurrable.^ 

§  408.  In  Louisiana,  the  Code  of  Practice  provides  that  the 
defendant  may  prove  in  a  summary  way,  after  having  given  due 
notice  in  writing  to  tlie  adverse  party,  that  the  allegations  on 
which  the  order  for  attachment  had  been  obtained,  were  false; 
in  which  case  the  attachment  will  be  dissolved.^  And  it  is  not* 
necessary  that  such  a  defence  should  be  set  up  by  plea  or  excep- 
tion.^ It  is  considered  there,  that  the  affidavit  has  a  greater  eflfect 
than  merely  enabling  the  party  to  obtain  process  against  the 
defendant,  and  that  in  making  proof  under  such  a  defence,  the 
defendant  must  show  sufficient  to  throw  the  burden  of  proof  on 
the  phiintifT;*  and  in  a  case  where  the  evidence  on  behalf  of  the 
defcnilunt  elTected  no  more  tlian  merely  making  the  matter  doubt 
ful,  it  was  held,  that  the  attachment  should  not  be  dissolved.^ 
In  Ohio,  however,  it  is  held,  that  a  denial  by  the  defendant  of 
the  ground  of  attachment,  throws  the  bui'den  of  proof  on  the 
plaintiff.^ 

§  409.  In  Missouri,  the  right  conferred  upon  the  defendant  by 
statute,  to  contest  the  truth  of  the  plaintiff's  affidavit,  by  a  plea 
"  in  the  nature  of  a  plea  in  abatement,"  has  given  rise  to  a 
number  of  adjudications.  The  language  of  the  staUite  is  as 
follows  :  '*  In  all  cases  where  property  or  effects  shall  be  attached, 
the  defendant  may  file  a  plea,  in  the  nature  of  a  plea  in  abate- 
ment, without  oath,  putting  in  issue  the  truth  of  the  facts  alleged 
ill  the  affidavit,  on  which  the  attachment  was  sued  out.  Upon 
such  issue,  the  plaintiff  shall  be  held  to  prove  the  existence  of  the 
facts  alleged  by  him,  as  the  ground  of  the  attachment ;  and  if  the 
issue  be  found  for  him,  the  cause  shall  proceed  ;  but  if  it  be 
found  for  the  defendant,  the  suit  shall  be  dismissed  at  the  costs 

1  White  r.  Wilson,  10  Illinois  (5  Gilman),  21. 

•  Louisiana  Code  of  Practice,  Art.  258. 

'  Head  r.  Ware,  2  Loui^iana  Annual,  498. 

•  Brnmgard  v.  Anderson.  16  Louisiana,  341  ;  Oflfat  v.  Edwards,  9  Robinson  (La.), 
90  ;  Simons  v.  Jacobs,  15  Ixiui.sinna  Annual,  425. 

'  Moore  «;.  An;;iok'tte,  12  Martin,  .5.32. 

•  Coston  I'.  Paige,  9  Ohio  State,  397. 

18  [27:n 


§  409  ATTACHMEXTS   IMPROVIDENTLY   ISSUED,  [clIAl'.  XV. 

of  the  plaintiff."  '     Iii  order  to  see  the  force  of  some  of  the  cases 
to  bo  cited   from  the  Reports  of   this  State,  it  is  ueccssary  to 
mention   here,  that  the  affidavit  for  an   attachment   must   state 
that  the  affiant  "  has  good  reason  to  believe,  and   does  believe  " 
the  facts'alleged  as  a  ground  for  obtaining  the  attachment.     Tho 
j)h!a  authorized  by  the  statute,  being  tlierein  designated  as  "  in 
the  nature  "  of  a  plea  in  abatement,  was  at  one  time  held  to  bo  in 
fact  such  a  jjlea,  and  to  l)e  governed  by  tho  same  principles,  sub- 
ject to  the  same  rules,  and  liable  to  the  same  consequences  as  a 
4jlea  in  abatement;^  and  therefore  not  amendable  after  demurrer;' 
but  afterwards  this  position  was  abandoned,  and  the  plea  held  to 
be    not    strictly    within    the    rules   of   pleading   at   common    law 
aj)plicalile  to  pleas  in  abiitement,  and  that  it  might  be  amended. 
Therefore,  where   the   affidavit  alleg»,'d    that  "  the   defendant   has 
absented  himself  from  his  usual   place  of  abode  in  the  State  of 
Missouri,  so  that  the   ordinary  process  of  law  cannot  be  served 
upon  him,"  and  the  defendant  filed  a  plea  saying  that  "  at  tho 
time  stated  in  the  affidavit,  ho  had  not  absented  himself  from  his 
usual  place  of  abode  in  this  State,  so  that  the  ordinary  process  of 
law  could  be  served  upon  him  "  ;  and  the  plaintiff  demurred  to 
the  plea  ;  and  the  defendant  asked  leave  to  amend  by  inserting 
the  word  "  not  "  after  tlic  word  ''  could  "  ;  it  was  held,  that  ho 
was* entitled   to  make  the  amendment.'*     If,  after  filing  such  a 
plea,  the  defendant  plead  to  the  merits  of  the  action,  it  is  a  waiver 
of  the  plea  in  abatement.^     Where  time  has  elapsed  between  the 
date  of  the  affidavit  and  the  issue  of  the  writ,  this  plea  puts  in 
issue  the  truth  of  the  facts  alleged  at  the  time  the  writ  was  ob- 
tained.^    This  mode  of  contesting  the  truth  of  the  facts  sworn 
to,  being  provided  by  the  statute,  that  question  cannot  bo  investi- 
gated on  a  motion.'^     And  after  the  filing  of  a  plea  in  abatement, 
it  is  not  competent  for  the   plaintiff  to  dissolve  his  attachment, 
and  carry  on  his  action  as  if  it  had  been  commenced  by  summons ; 
for  the  statute  gives  the  defendant  the  right  to  try  the  truth  of 
the  affidavit,  and  if  the  issue  be  found  for  him,  to  have  the  suit 

1  Revised  Statutes  of  Missouri  of  1845,  pp.  139,  140. 

2  Livcn<jood  v.  Shaw,  10  Missouri,  273;  Hatry  v.  Shuman,  13  Ibid.  547. 
8  Livcngood  v.  Shaw,  10  Missouri,  273. 

*  Cayce  i\  Kagsdalc,  17  Missouri,  32. 

*  Hatry  i-.  Shuman,  13  Missouri,  547 ;  Cannon  v.  McManus,  17  Ibid.  345. 
^  Graham  v.  Bradbury,  7  Missouri,  281. 

'  Graham  v.  Bradburv,  7  Missouri,  281 ;  Searcy  v.  Platte  County,  10  Ibid.  269. 

[274] 


CHAP.  XV.]     AND  THE  MEANS  OF  DEFEATING  THEM.         §  410 

dismissed.^  This  plea  does  not  put  in  issue  the  belief  of  the 
person  making  the  affidavit,  nor  the  goodness  of  the  reasons  for 
his  belief,  but  the  truth  of  the  facts  charged.'^  Nor  can  the 
intentions  of  the  defendant  be  inquired  into  under  it,  except 
in  those  cases  in  which  the  statute  contemplates  such  an  investi- 
gation. Therefore,  where  the  affidavit  averred  that  the  defendant 
had  absconded  or  absented  herself  from  her  usual  place  of  abode, 
so  that  the  ordinary  process  of  law  could  not  be  served  upon  her; 
and  it  was  shown  on  tlie  trial  tliat  her  conduct  had  been  of  that 
character  which  might  well  induce  the  belief  that  she  had  al> 
sconded  at  the  time  the  writ  issued  ;  it  was  held,  that  the  court 
did  right  in  refusing  so  to  instruct  the  jury  as  to  place  before 
them  the  question  as  to  the  intentions  of  the  defendant,  and  in 
instructing  them  that  the  only  matter  for  their  determination 
was,  whether,  at  the  time  of  the  making  of  the  affidavit,  the  de- 
fendant actually  had  altscundod  or  absented  herself,  as  charged.^ 
Under  this  pica  the  defendant  cannot  take  advantage  of  a  misno- 
mer. Elisha  Swan  and  Nelson  Deming  were  sued,  and  traversed 
the  allegation  that  they  were  non-residents,  and  attempted  to 
give  in  evidence  that  Deming's  name  was  not  "  Nelson,"  but 
"  Anson  L."  ;  but  it  was  held  to  be  inadmissible.*  Upon  a  trial 
of  an  issue  under  such  a  plea,  it  was  held,  that  evidence  that 
the  defendant  was  largely  indebted  to  others  besides  the  plaintiff 
■was  inunuterial.*^  Where  three  grounds  of  attachment  were  al- 
leged, and  the  defendant  pleaded  in  abatement  to  two  of  them 
only,  it  was  held,  that  the  omission  to  plead  to  the  third  ground 
was  not  an  admission  of  its  truth.^ 

§  400  a.  Where  two  several  grounds  are  stated  in  the  affidavit 
for  the  attachment,  and  a  plea  in  abatement  is  fded  to  the  affidavit, 
it  is  not  necessary  that  both  grounds  should  be  proved,  but  the 
provhig  of  either  will  be  sufficient  to  sustain  the  attachment.^ 

§  410.  In  Iowa,  a  statutory  provision  formerly  existed,  authoriz- 
ing the  defendant  "  to  join  issue  upon  the  facts  and  allegations  set 

1  Mcnse  v.  Osbem,  5  Missouri,  544. 

'•*  Chenault  v.  Chapron,  5  Missouri,  4.38 ;  Didcr  v.  Courtney,  7  Ibid.  500. 
8  Temple  v.  Cochran,  1.3  Missouri,  116. 
*  Swan  I'.  O'Fallon,  7  Missouri,  231. 
6  Switzer  r.  Carson,  9  Missouri,  740. 

6  Kritzcr  v.  Smith,  21  Missouri.  296.         '  Tucker  v.  Frederick,  28  Missouri,  574. 

[275] 


§  410  ATTACHMENTS  IMPROVIDENTLT  ISSUED,  ETC.       [CHAP.  XV. 

forth  in  the  affidavit,"  which  issue  was  to  be  tried  by  a  jurj,  and 
if  found  for  tlio  defendant,  the  attachment  was  to  be  dissolved ;  ^ 
but  in  the  Code  of  tliat  State,  adopted  in  1851,  the  grounds  on 
which  the  attachment  is  sought  must  be  incorporated  in  the  peti- 
tion, and  may  be  denied  in  the  same  manner  as  any  other  allega- 
tion, and  if  not  denied  will  be  considered  as  admitted.^ 

1  Revised  Statutes  of  Iowa,  1843,  p.  78.  *  Code  of  Iowa,  ch.  104  and  109. 

[276J 


CHAP.  XVI.]  DISSOLUTION   OF   AN   ATTACHMENT.  §  411 


CHAPTER    XYI. 

DISSOLUTION   OF   AN   ATTACHMENT. 

§  411.  The  dissolution  of  an  attachment  necessarily  discharges^ 
from  its  lien  the  effects  or  credits  on  which  it  was  executed,  whether 
reduced  to  possession  by  the  officer,  or  subjected  in  the  hands  of 
garnishees.  Wiion  dissolved,  the  defendant  is  entitled  to  a  return 
of  the  property,  on  demand,  unless  the  judgment  of  dissolution 
be  suspended  by  writ  of  error  or  appeal.  This,  it  is  said,  takes 
away  the  defendant's  right  to  demand  a  return ;  and  the  officer, 
if  he  have  notice  of  the  writ  of  error  or  appeal,  would  not  be  jus- 
tified in  returning  the  property.  But  if  before  writ  of  error  or 
appeal  tlie  defendant  demands  it,  and  the  officer  gives  it  up,  it  was 
held  in  Alabama,  that  the  latter  cannot  afterwards,  on  reversal  of 
the  judgment,  be  held  responsible  for  iO  This  was  ruled  in  a  case 
where  the  judgment  dissolving  the  attachment  was  rendered  "  at 
the  spring  term  "  of  the  court,  and  the  writ  of  error  was  not  sued 
out  until  the  fullowing  November,  and  in  the  intervening  June 
the  shtTJir  returned  the  proceeds  of  the  attached  property  to  the 
defendant. 

But  where  the  attachment  plaintiff  acts  promptly  in  taking  the 
case  to  a  higher  court,  by  appeal  or  writ  of  error,  operating  as  a 
supersedeas,  it  were  a  great  injustice  to  him  to  hold  that  the  officer 
who  iittached  the  property  may  give  it  back  to  the  defendant,  and 
escape  all  liability  for  it  to  the  plaintiff,  when  the  judgment  dis- 
solving the  attachment  is  reversed,  and  the  plaintiff's  right  to 
hold  the  property  has  been  established.  In  such  case,  there  would 
hardly  seem  room  for  doubt  that  the  contrary  view  taken  by  the 
Supreme  Court  of  Iowa  is  correct.  There  the  attachment  plain- 
tiff, at  the  same  term  of  the  court  at  whicli  his  attachment  was 
dissolved,  and  witiiin  four  days  after  the  dissolution,  appealed 
from  the  judgment,  and  gave  a  supersedeas  bond ;  but  in  the 
interval  the  officer,  without  any  order  of  the  court,  gave  back  the 
attached  property  to  the  defendant.  On  the  appeal  the  judgment 
dissolving  the  attachment  was  revLT>cd  ;  and  the  Supreme  Court 

1  Shcrrod  r.  Davis,  17  Ala!);ui):i,  312. 

[277] 


§  413  DISSOLUTION   OF   AN   ATTACHMENT.  [CHAP.  XVL 

licld,  that  the  plaintiff  had  not  lost  liis  right  to  recourse  upon  the 
attached  efrocts.^  But  in  another  branch  of  the  same  case,  that 
court  subsequently  held,  tliat  this  decision  had  no  reference  to  a 
case  wlicre  the  rights  of  third  persons  were  involved.  And  so, 
where  a  sura  of  money  was  in  the  hands  of  the  clerk  of  the  court, 
as  proceeds  of  tlie  sale  of  part  of  the  attached  property,  and  be- 
tween tho  time  when  tlie  attachment  was  dissolved,  and  that  of 
taking  the  ai)pcal,  the  clerk,  witliout  knowing  that  the  appeal 
would  be  taken,  paid  over  the  money  to  the  defendant;  it  was 
held,  that  he  could  not  be  made  lial)le,  if  lie  paid  it  in  good  faith  ; 
that  if  the  plaintiff  wished  the  money  to  remain  in  statu  quo,  he 
should  have  notified  the  clerk  of  his  intention  to  appeal ;  and  that 
if  the  clerk  had  paid  it  over  after  such  notice  he  would  have  been 
liable.^  But  in  every  such  case  it  is  undoubtedly  the  safest  course 
for  the  officer  to  require  an  order  of  the  court  for  the  payment  of 
the  money  to  the  defendant. 

§  412.  Where  two  attachments  were  executed  on  the  same 
effects,  and  that  first  executed  was  quashed,  and  the  judgment 
quashing  it  was  reversed,  but  in  the  mean  time  the  property  was 
sold  and  the  proceeds  paid  to  the  plaintiff  in  the  second  attach- 
ment ;  it  was  decided  that  the  first  attaching  creditor  was  entitled 
to  recover  from  the  second  the  money  paid  over  to  him.^  But 
where  over  three  years  elapsed  before  the  writ  of  error  was  prose- 
cuted, it  was  held,  that  the  attachment  was  not  revived  as  against 
third  persons.* 

§  413.  Where  property  is  attached  and  sold,  and  the  proceeds 
paid  to  the  plaintiff,  a  reversal  of  the  judgment  by  an  appellate 
court,  on  grounds  not  affecting  the  merits  of  the  plaintiff's  claim, 
will  not  entitle  the  defendant  to  recover  the  proceeds  back  from 
the  plaintiff,  where  it  appears  that  he  prosecuted  his  suit  in  good 
faith,  believing  himself  legally  entitled  to  do  it.  If  prosecuted, 
however,  for  the  purpose  of  obtaining  an  undue  advantage,  by 
getting  hold  of  the  proceeds  of  the  sale  of  the  property,  he  would 
not  l)e  permitted  to  avail  himself  of  an  advantage  thus  improperly 
obtained.^ 

1  Danforth  v.  Carter,  4  Iowa,  230.  2  Panforth  v.  Rupert,  11  Iowa,  .547 

8  Caperton  v.  M'Corkle,  5  Grattan,  177. 
*  Harrow  v.  Lyon,  3  G.  Greene,  157. 
^  Jackson  r.  IloUoway,  14  B.  Monroe,  133. 
[278] 


CHAP.  XVI.]  DISSOLUTION   OF   AN   ATTACHMENT.  §  416 

§  414.  As  attachment  is  merely  a  creature  of  statute,  its  exist- 
ence and  operation  in  any  case  can  continue  no  longer  than  the 
law  authorizing  it  is  in  force.  If,  during  the  progress  of  a  suit 
by  attachment,  the  law  under  which  it  was  instituted  be  repealed, 
without  providing  for  the  prosecution  of  pending  suits,  there  can 
be  no  further  proceeding,  and  the  attachment  will  be  dissolved.^ 

§  415.  Obviously,  a  final  judgment  for  the  defendant,  as  it  leaves 
no  ground  for  further  proceedings  against  him,  ipso  facto  dissolves 
an  attaclimcnt,  and  leaves  the  attached  property,  in  relation  to  the 
defendant  as  well  as  subsequent  attachers,  in  the  same  condition 
as  before  the  service  of  the  writ.^  , 

Under  such  circumstances,  as  well  as  where  the  attachment  is 
discharged  by  a  payment  of  the  debt,  the  officer  is  bound  to  return 
the  attached  property  to  the  owner ;  but  he  cannot  be  charged  as 
a  wrongdoer,  for  holding  it  until  satisfactory  evidence  be  given 
him  that  tlie  attachment  has  been  vacated.^ 

§  410.  Defects  in  the  plaintifT's  proceedings  are  equally  fatal  to 
an  attachment,  unless  remedial »le  by  amendment.  They  arc  usually 
found  in  the  two  preliminaries  to  the  granting  of  the  writ,  the 
affidavit  and  the  bond  ;  of  which  we  have  heretofore  treated.*  In 
sucii  cases  the  dissolution  or  quashing  of  the  attachment  is  gen- 
erally effected  through  a  motion,  based  on  defects  ajjparent  on  the 
face  of  the  proceedings.  Indeed,  on  the  hearing  of  such  a  motion, 
nothing  will  be  considered  but  what  is  thus  apparent.^  And  the 
motion  must  specify  the  grounds  upon  which  it  is  made.  It  is  not 
sufficient  to  say  that  it  is  made  "  because  the  writ  was  improperly 
issued  "  ;  there  must  be  a  statement  of  the  points  of  ol)jection 
upon  which  the  moving  party  will  rely.^  If  there  is  any  intrinsic 
defect  in  the  proceedings,  not  discernible  on  their  face,  it  cannot 
be  brought  before  the  court  on  a  motion  of  this  description,  but 
must  be  reached  in  some  othgr  mode.  For  example,  an  attach- 
ment bond  is  executed  in  the  name  of  the  plaintiff,  by  an  attorney 

1  Stephenson  v.  Doe,  8  Blackford,  508. 

2  Clapp  r.  Boll,  4  Mass.  99 ;  Johnson  v.  Edson,  2  Aikens,  299 ;  Suydam  v.  Hugge- 
ford,  2.3  Pick.  46.5  ;  Harrow  r.  Lyon,  3  G.  Greene,  157;  Brown  v.  Harris,  2  Ibid.  505. 

8  Wheeler  v.  Nichols,  32  Maine,  233. 

*  See  Chapters  V.  and  VI. 

6  Baldwin  i-.  Conger,  9  Smedes  &  M.arshall,  516;  Hill  i'.  Bond,  22  Howard  Pract. 
R.  272  ;  Coojwr  r.  Reeves,  13  Indiana,  53  ;  Wright  v.  Smith,  19  Texas,  297. 

*  Freeborn  v.  Glazer,  10  California,  337. 

[279] 


§  417  DISSOLUTION  OF  AN  ATTACHMENT.  [CIIAP.  XVL 

in  fact.  The  attorney  may  have  had  suflficient  autliority,  or  he 
may  not ;  but  whether  or  not,  the  court  will  not  inquire  into  that 
fact  on  a  motion  to  dissolve.  Tlie  scrutiny  will  not  extend  beyond 
the  record ;  and  if  there  is  a  bond  there,  though  it  may  in  fact 
have  been  executed  without  any  valid  authority,  it  is  sufficient  pro 
hac  vice  to  sustain  the  attachment.^  So,  where  an  attachment  is 
taken  out  by  a  corporation,  the  court  will  not,  on  such  a  motion, 
allow  the  defendant  to  show  that  the  corporation  had  no  power 
under  its  charter  to  execute  the  bond.^ 

In  Pennsylvania,  however,  on  a  rule  to  show  cause  wliy  an  at- 
tachment should  not  be  set  aside,  the  defendant  was  allowed  to 
show  that  the  plaintiff  had  obtained  judgment  in  another  State 
on  the  same  demand,  and  levied  execution  there ;  and  the  attach 
ment  was  quashed.^  But  it  was  not  regarded  as  any  objection  to 
an  attachment,  that  the  plaintiflf  had  sued  out  an  attachme^it  in 
another  State  for  the  same  cause  of  action,  unless,  perhaps,  the 
defendant  had  there  given  bail.*  But  the  pendency  of  another 
suit  by  attachment  in  the  same  State,  for  the  same  cause  of  action, 
was,  in  Mississippi,  held  to  be  good  in  abatement.^ 

§  416  a.  Whether  one  not  a  party  to  the  record,  but  who  has 
an  interest  in  the  question,  can  make  a  motion  to  quash  the  at- 
tachment, for  defects  apparent  on  the  face  of  the  record,  does  not 
appear  to  have  been  decided  ;  but  in  Alabama  it  was  held,  that  no 
such  motion  could  be  made  by  such  a  person,  for  matter  dehors  the 
record,  and  which  is  properly  triable  by  a  jury.® 

§  417.  It  is  not  admissible  for  the  defendant,  in  order  to  dis- 
solve an  attachment  on  motion,  to  show  that  the  debt  was  not 
due ;  "*  or  that  the  amount  claimed  by  the  plaintifif  is  unconscion- 
able or  unreasonable.^  This  would  be  to  try  in  a  summary  and 
collateral  way  the  main  issue  in  the  cause.     Nor  can  he  move  to 

1  Lindner  v.  Aaron,  5  Howard  (Mi.),  581 ;  Spear  v.  King,  6  Smedes  &  Marshall,  276 ; 
Jackson  v.  Stanley,  2  Alabama,  326 ;  Lowry  v.  Stowe,  7  Porter,  483 ;  Calhoun  v.  Co/,- 
zens,  3  Alabama,  21  ;  Goddard  v.  Cunningham,  6  Iowa,  400. 

2  Bank  of  Augusta  v.  Conrey,  28  Mississippi,  667. 
8  Downing  v.  Phillips,  4  Yeates,  274. 

*  Fisher  v.  Consequa,  2  "Washington  C.  C.  382 ;  Clark  v.  Wilson,  3  Ibid.  .560. 
s  James  r.  Dowell,  7  Smedes  &  Marshall,  333. 

*  Coekrell  t'.  lIcGraw,  33  Alabama,  526. 

7  Fisher  v.  Taylor,  2  Martin,  79,  113;  Smith  v.  Elliot,  3  Ibid.  366;  Reiss  v.  Brady, 
2  California,  132. 

*  Lord  V.  Gaddis,  6  Iowa,  57. 

[280j 


CHAP.  XVI.]  DISSOLUTION   OF   AN  ATTACHilENT.  §  420 

discharge  the  attachment  on  the  ground  that  the  property  attached 
did  not  belong  to  him.^ 

§  418.  It  is  said  that  a  motion  to  dissolve  an  attachment,  for 
irregularities  in  the  proceedings,  is  addressed  to  the  discretion  of 
the  court,  and  may  be  acted  on  or  declined  at  pleasure ;  and  this 
discretion  will  not  be  controlled  by  mandamus,^  or  revised  by  an 
appellate  court  on  error.^  But  where  the  judgment  of  a  court  has 
been  had  in  this  summary  mode,  its  correctness  may  be  examined 
on  error ;  *  but  not  unless  the  reasons  for  dissolving  the  attach- 
ment are  spread  upon  the  record,  or  preserved  in  a  bill  of  excep- 
tions.^ Where,  however,  the  objection  to  the  attachment  is  not  on 
the  ground  of  irregularity,  but  because  it  was  sued  out  upon  a 
cause  of  action  not  contemplated  by  the  statute,  the  court  in 
which  the  action  is  pending  should  dismiss  the  suit,^  and  if  it  do 
not,  the  appellate  court  will  review  its  action,  and  itself  exercise 
the  remedy.^ 

§  419.  The  refusal  of  the  court  in  which  the  attachment  was 
brought,  to  dissolve  it  on  motion,  does  not  preclude  its  doing  so  at 
tlie  tinal  hearing.^ 

§  420.  A  mis-recital,  in  the  writ,  of  the  court  to  which  it  is 
returnable,  is  no  ground  for  dissolving  an  attachment,  where  the 
nature  and  character  of  the  writ  show  that  it  could  be  returnable 
only  in  a  particular  court.^  In  Alabama,  where  the  practice  is  to 
recite  in  the  writ  the  grounds  of  attachment  set  forth  in  the  affi- 
.  davit,  and  an  affidavit  alleged  that  the  defendant  "  so  absconds  or 
conceals  himself  that  the  ordinary  process  of  law  cannot  be  served 
on  him,"  and  the  writ  recited  that  oath  had  been  made  tliat  the 
defendant  "  hath  removed,  or  is  about  to  remove  himself  out  of 
the  county,  or  so  absconds  or  conceals  himself  that  the  ordinary 

1  Langdon  v.  Conklin,  10  Ohio  State,  439. 

2  Ex  p<irte  Puturtin,  20  Alabama,  592. 

8  Reynolds  v.  Bell,  .3  Alabama,  ,57  ;  Massey  v.  Walker,  8  Ibid.  167 ;  Ellison  v.  Mounts, 
12  Ibid.  472  ;  Hudson  v.  Daily,  13  Ibid.  722  ;  Gee  v.  Alabama  L.  I.  &  T.  Co.,  Ibid.  579 ; 
Gill  V.  Downs,  26  Ibid.  670 ;  Lindslcy  v.  Malone,  23  Penn.  State,  24. 

*  Re\-nold3  v.  Bell,  3  Alabama,  37. 

'  Cobb  V.  O'Neal,  1  Howard  (Mi.),  581 ;  Freeborn  v.  Glazer,  10  California,  337. 

•  Elliott  r.  Jackson,  3  Wisconsin,  349. 
">  Griswold  V.  Sharpe,  2  California,  17. 
8  Talbot  V.  Pierce,  14  B.  Monroe,  195. 

»  Byrd  v.  Hopkins,  8  Smedes  &  Marshall,  441 ;  Wharton  v.  Conger,  9  Ibid.  510. 

[281] 


§  422  DISSOLUTION   OP   AN   AJTACHMENT.  [CHAI'.  XVL 

process  of  law  cannot  be  served  u|»om  him  "  ;  it  was  held,  that  the 
writ  did  not  follow  the  tdnns  of  the  allidavit,  and  left  it  uncertain 
as  to  the  ground  of  the  proceeding,  and  it  was  quashed.^  A  con- 
trary doctrine,  however,  was  maintained  in  Mississippi,  where  it 
was  held,  that  such  a  mis-recital  would  not  vitiate  the  attachment, 
if  the  record  showed  that  the  proper  averment  was  made  in  the 
affidavit.^ 

§  420  a.  The  issue  of  an  attachment  on  Sunday  is  at  common 
law  an  irregularity,  which,  if  appearing  on  the  face  of  the  writ, 
will  justify  the  quashing  of  it.  But  if  it  do  not  so  appear,  the 
court,  u'here  the  act  of  the  clerk  is  Judicial,  and  not  merely  minia 
terial,  cannot  order  the  clerk  to  alter  the  date  of  the  writ,  so  as  to 
make  it  show  that  it  was  issued  on  Sunday,  and  then  quash  it.* 

§  421.  Every  attempt  to  overturn  an  atUichment,  on  account 
of  defects  in  the  plaintilT's  proceedings,  must  precede  the  defend- 
ant's plea  to  the  merits.  When  he  so  pleads,  he  is  considered 
to  have  waived  all  exceptions  to  such  defects  ;''  and  the  court 
can  make  no  order  quashing  the  attachment,  which  can  interfere 
with  the  trial  of  the  issues  made  by  the  pleadings.^  When  the 
defendant  aj)pears  and  moves  to  dissolve  the  attachment,  it  is 
held,  in  Missouri,  to  be  such  an  appearance  to  the  action  as 
will  authorize  a  judgment  by  default  against  him,  if  he  fails  to 
plead  to  the  merits,  whether  he  was  served  with  process  or 
not ;  ^  but  not  so  in  Louisiana  or  Illinois,  if  he  was  not  so 
served." 

§  422.  An  attachment  may  be  dissolved  as  to  subsequent  at 
tachments,  and  yet  remain  in  force  as  against  the  defendant.  A 
portion. of  this  subject  has  been  presented  in  the  chapter  on  Simul- 
taneous, Successive,  Conflicting,  and  Fraudulent  Attachments,  and 

1  "Woodley  v.  Shirley,  Minor,  14. 

2  Lovclady  v.  Ilarkins,  6  Smcdcs  &  Marshall,  412;  Clanton  t'.  Laird,  12  Ibid.  568 
8  Matthews  v.  Ansley,  31  Alabama,  20. 

*  Garmou  v.  Barrinj^er,  2  Devereux  &  Battle,  502;  Stoney  v.  M'Neill,  Harper,  156  , 
Yonng  V.  Grey,  Ibid.  38 ;  Watson  v.  M'AUister,  7  Martin,  368;  Enders  v.  Steamer  Hen- 
Ty  Clay,  8  Robinson  (La.),  30;.  Symons  v.  Northern,  4  Jones,  241  ;  Judah  v.  Duncan, 
2  Bailey,  454 ;  Gill  v.  Downs,  26  Alabama,  670 ;  Memphis  R.  R.  Co.  v.  Wilcox,  48 
Tenn.  State,  161. 

^  Carr  v.  Coo])wood,  24  Mississippi,  256. 

®  Whiting  V.  Budd,  5  Missouri,  443;  Evans  v.  King,  7  Ibid.  411. 

^  Bonner  v.  Brown,  10  Louisiana  Annual,  334 ;  Johnson  v.  Buell,  26  Illinois,  66. 
[282] 


CHAP.  XVI.]  DISSOLUTIOK   OF   Al?   ATTACHMENT.  §  424 

in  that  on  Bailment  of  Attached  Property.  But  there  is  a  cla/^s 
of  cases  which  may  properly  be  considered  in  this  connection, 
involving  the  dissolution  of  the  attachment,  or  the  loss  of  its 
lien,  as  against  subsequent  attachers,  hy  some  act  or  negligence  of 
the  attaching  officer. 

§  423.  It  is  undoubtedly  the  duty  of  an  officer,  in  attaching 
personal  property,  to  reduce  the  same  to  possession,  so  far  as, 
under  the  circumstances,  can  be  done.  And  since  taking  posses- 
sion in  the  first  instance  is  of  no  value  unless  it  be  continued, 
and  as  an  abandonment  of  the  possession  by  the  officer  would 
leave  other  officers  and  the  community  without  any  notice  or 
intimation  of  an  existing  attachment,  it  is  necessary  that  the 
officer  should,  himself,  or  by  another,  retain  his  control  or  power 
of  taking  immediate  custody  of  the  property,  wherever  it  is 
capable  of  being  reduced  into  actual  possession.  If  he  do  not, 
he  will  be  regarded  as  having  abandoned  his  attachment,  and 
its  lien,  as  to  subsequent  attachers,  or  bond  fide  purchasers  from 
the  defendant,  will  be  lost.^  As  to  the  defendant,  however,  no 
such  result  will  take  place.  Hence,  where  a  steamboat  was 
attached,  but,  by  agreement  between  the  plaintiff  and  the  master 
of  the  boat,  was  allowed  to  proceed  on  its  voyage,  with  the  under- 
standing that  on  its  return  it  should  be  delivered  to  the  sheriff, 
subject  to  the  writ,  it  was  held  that,  as  between  the  parties  to  the 
action,  the  lien  of  the  attachment  was  not  extinguished.^ 

§  424.  It  is  held,  that  it  is  the  officer's  return  upon  the  writ 
•  which  perfects,  if  it  does  not  constitute,  the  attachment ;  and 
that  though  he  may  seize  property,  yet  unless  he  make  a  proper 
statement  of  it  in  writing  on  the  writ,  it  cannot  be  deemed  an 
attachment.  The  right  of  the  officer  to  hold  the  property  attached 
is  perfect,  before  the  return  of  the  writ,  and  will  continue  till  the 
return  day,  up  to  which  time  he  is  allowed  to  make  his  return, 
and  any  delay,  witliin  that  time,  will  not  invalidate  the  attachment. 
But  if  he  do  not  make  a  return  at  all,  the  attachment  is  considered 

»  Nichols  V.  Patten,  18  Maine,  231  ;  Waterhouse  v.  'Smith,  22  Ibid.  337;  Baldwin  v. 
Jackson,  12  Mass.  131  ;  Sanderson  v.  Edwards,  16  Pick.  144 ;  Bruce  v.  Holdcn,  21  Ibid. 
187;  Taintor  r.  Williams,  7  Conn.  271  ;  Pomroy  v.  Kingslcy,  1  Tyler,  294;  Fitch  v. 
Rogers.  7  Vermont,  403;  Sanford  v.  Boring,  12  California,  539;  Chadbourne  v.  Sum- 
ner, 16  New  Hamp.  129. 

^  Conn  V.  Caldwell.  6  Dlinois  (1  Oilman),  531 ;  Fifield  j;.  Woostcr,  21  Vermont,  2J5. 

[283] 


§  427  DISSOLUTION   OF   AN   ATTACHMENT.  [CHAl'.  XVL 

to  be  dissolved  ;  but  not  in  such  sense  as  to  invalidate  it  ah  inillo^ 
where  the  failure  to  return  results  from  the  settlement  of  the  suit 
between  the  parties  before  the  return  day.^ 

§  425.  The  necessity  of  great  circumspection  on  the  part  of 
attaching  officers,  in  keeping  possession  of  attached  property,  is 
strikingly  illustrated  in  a  case  in  Massachusetts  ;  whore  an  oflicer 
suffered  certain  articles  ho  had  attached,  to  be  mixed  with  other 
articles  of  a  like  kind  which  had  been  previously  attached  by 
another  officer,  who  then  returned  an  attachment  of  the  whole 
by  himself.  It  was  held,  that  the  officer  who  permitted  the  goods 
he  liad  attached  to  be  mixed  uj)  with  those  seized  by  the  other, 
thereby  lost  his  special  property  in  the  goods,  and  that  the  other 
officer  was  entitled  to  hold  them.' 

§  42G.  While  it  is  unquestionably  true  that  the  preservation 
of  tlie  lien  of  an  attachment  depends  upon  the  continued  posses- 
sion, actual  or  constructive,  of  the  attached  property,  by  the  at- 
taching officer,  it  is  also  true  that  the  taking  of  the  property  out 
of  his  custody  by  a  wrongdoer,  without  any  act  on  the  officer's 
part  abandoning  it,  will  not  defeat  the  attachment.  Under  such 
circumstances,  he  may  follow  and  retake  it  wherever  he  may 
find  it,  in  virtue  of  his  special  property  in  it,  or  he  may  maintain 
an  action  against  the  wrongdoer,  or  against  another  officer  who 
has  subsequently  attached  it.* 

§  427.  A  question  here  arises,  as  to  the  effect  upon  an  attach- 
ment of  the  removal  of  the  attached  property,  by  the  officer, 
beyond  his  bailiwick,  into  a  foreign  jurisdiction.  It  seems  clear 
that  the  mere  fact  of  such  removal,  without  regard  to  the  circum- 
stances connected  with  it,  will  not  dissolve  the  attachment.  In 
determining  its  effect,  therefore,  regard  must  be  had  to  the  ol)ject 
and  manner  of  the  removal.  The  first  point  to  be  determined  is, 
whether  the  purpose  of  the  officer  in  the  removal  was  a  lawful 
one  ;  and  next,  whether  his  possession  of  the  property,  personally 
or  by  another,  was  continued.  If  the  purpose  was  lawful  and  the 
possession  continued,  the  attachment  would  not  be  dissolved.  But 
if  the  purpose  was  unlawful,  though  his  possession  remained,  or  if 

1  Wilder  v.  Holden,  24  Pick.  8 ;  Russ  v.  Butterfield,  6  Gushing,  242  ;  Williams  v. 
Babbitt,  14  Gray,  141. 

2  Gordon  v.  Jenney,  16  Mass.  465.  ^  Butterfield  v.  Clemence,  10  Gushing,  269. 

[284] 


CHAP.  XVl]  DISSOLUTION   OF   AN  ATTACHilENT.  §  428 

lawful,  aud  he  lost  his  possession,  his  special  property  in  the  goods 
would  be  devested.  Thus,  where  an  oflficer  attached  certain  sheep 
in  Massachusetts,  and  delivered  them  to  a  keeper  in  Rhode  Island, 
tukiuf  his  obligation  to  redeliver  them  on  demand  ;  it  was  held, 
that  there  was  no  pretence  that  the  officer's  special  property  was 
thereby  determined.^  Here,  the  purpose  was  entirely  lawful,  and 
the  possession  of  the  keeper  was  that  of  the  officer. 

But  where  a  sheriff  attached  certain  cotton  at  Vicksburg,  in 
Mississippi,  and  without  authority  of  law,  or  of  the  parties  to 
the  suit,  shipped  it  to  a  commission  merchant  in  New  Orleans, 
with  instructions  to  sell  it  at  private  sale,  and  remit  the  proceeds 
to  him,  and  the  proceeds  were  attached  in  the  hands  of  the 
merchant  by  another  creditor  of  the  defendant,  and  the  Vicksburg 
sheriff  claimed  them ;  it  was  held,  that  the  officer  had  violated 
his  official  duty  in  sending  the  cotton  to  New  Orleans,  and  that  his 
special  property  in  it  was  lost.^ 

§  428.  It  is  of  special  importance  that  an  officer  should  not 
leave  attached  property  in  the  possession  of  the  defendant,  unless 
authorized  thereto  by  some  statutory  provision.  The  possession 
of  personal  property  is  the  only  indicium  of  ownership  ;  and  to 
suffer  a  debtor  to  retain  [K)ssession  of  his  property  after  it  has 
been  attached,  is  primd  facie  evidence  that  the  attachment  is 
fraudulent  in  respect  of  other  creditors  ;  whose  attachments,  or 
a  bond  fide  purchase  from  the  defendant,  will  prevail  against  the 
attachment  whose  lien  has  thus  been  lost.^  And  in  such  case  it 
has  been  held,  that  the  officer  has  not  even  constructive  possession 
of  the  property.*  Hence  he  cannot,  consistently  with  the  preser- 
vation of  his  lien,  constitute  the  defendant  his  agent  to  keep  the 
property.^  But  though  the  lien  will  be  lost  by  suffering  the 
property  to  go  back  into  the  possession  of  the  debtor,  that  res'ult 
will  not  be  produced  by  the  defendant  or  his  family  being  allowed, 
without  interfering  with  the  officer's  possession,  to  use  such  arti-. 
cles  as  will  not  be  injured  by  such  use.  Therefore,  where  at- 
tached effects  were  left  in  the  house  inhabited  by  the  defendant, 

1  Brownell  i'.  Manchester,  1  Pick.  232. 

2  Dick  V.  Bailey,  2  Louisiana  Annual,  974. 

*  Gower  v.  Stevens,  19  Maine,  92 ;  Dunklee  v.  Fales,  5  New  Hamp.  .527 ;  Pomroy  v. 
Kingsley,  1  Tyler,  294;  Taintor  v.  Williams,  7  Conn.  271 ;  Baker  v.  Warren,  6  Gray, 
627  ;  Flanagan  i;.  Wood,  33  Vermont,  332. 

♦  Knap  V.  Sprague,  9  Mass.  258  ;  Pillsbury  v.  Small,  19  Maine,  435. 
^  Gower  v.  Stevens,  19  Maine  92. 

[285] 


§  131  DISSOLUTION   OF   AN   ATTACHMENT.  [CHAI'.  XVI. 

in  the  charge  of  a  keeper  appointed  bj  the  officer,  and  the  kee|>cr 
suffered  the  defendant's  family  to  use  tliem,  the  court,  fnidiiig  thiit 
the  use  was  permitted  from  motives  of  humanity  and  compassion, 
and  not  with  a  design  to  cover  the  proi)erty  against  creditors  hy  a 
pretended  attachment,  held  that  the  attachment  was  not  thereby 
dissolved.^ 

§  429.  Where  an  officer  leaves  attached  goods  in  the  possession 
of  the  defendant,  or  has  unauthorizedly  ceased  to  retain  posses- 
sion of  them,  and  another  officer  attempts  to  attach  them,  notice 
to  him  of  the  first  attachment  will  not  prevent  his  acquiring  a 
lien  on  tliem ;  for,  though  an  attachment  may  have  been  made, 
yet  the  second  officer  may  justly  assume  it  to  have  been  aban- 
doned, when  the  possession  of  the  first  officer  was  reliiuiuished.^ 
But  if  the  second  officer  know  that  there  is  a  subsisting  attach- 
ment, and  an  unrescinded  contract  of  bailmt»nt,  although  the  de- 
fendant might  at  the  time  have  the  possession  of  the  property,  he 
cannot  ac(iuire  a  lien  by  attaching  it.* 

§  430.  Where,,  as  in  several  States,  the  sale  of  attached  prop- 
erty on  me8?ie  process  is  authorized,  if  an  officer  make  such  sale 
of  part  of  the  attached  effects,  and  realize  therefrom  a  sufficiency 
to  pay  the  debt  on  which  the  attachment  was  obtained,  it  is  held, 
in  Vermont,  that  that  will  not  dissolve  the  attachment  as  to  the 
remainder,  or  impair  the  creditor's  lien  on  it,  whatever  may  be 
the  officer's  liability  for  attachhig  more  property  than  was  needed 
to  satisfy  the  debt.* 

§  431.  The  doctrines  so  far  stated,,  apply  to  the  acts  of  the 
officer  himself.  We  come  now  to  a  class  of  cases  which,  for 
convenience,  require  a  separate  notice,  as  involving  the  results 
of  acts  done  by  parties  other  than  the  officer,  though  the  general 
principles  are,  on  the  whole,  similar.  *It  is  customary,  and  often 
necessary,  for  attaching  officers  to  place  attached  property,  for  safe 

1  Baldwin  V.  Jackson,  12  Mass.  131.  See  Train  r.  Wellington,  Ibid.  495 ;  Young  v. 
Walker,  12  New  Hamp.  502. 

-  Ba.rley  v.  White,  4  Pick.  .395;  Sanderson  v.  Edwards,  16  Ibid.  144  ;  Gower  v.  Ste- 
vens, 19  Maine,  92;  Young  v.  Walker,  12  New  Hamp.  502;  Flanagan  v.  Wood,  33 
Vermont,  332. 

8  Young  V.  Walker,  12  New  Hamp.  502. 

*  Marshall  i-.  Town,  28  Vermont,  14. 
[286] 


CHAP.  XVI.]  DISSOLUTION   OF   AN   ATTACmiENT.  §  432 

keeping,  in  charge  of  servants  appointed  by  themselves,  whose 
possession  is  the  possession  of  the  officer.  In  such  case  the  lien 
of  the  attachment  is  in  no  sense  lost  by  the  officer's  possession 
ceasing  to  be  personal.  But  if  the  servant  placed  in  charge  of  the 
property  abandon  it,  and  it  come  into  the  possession  of  an  adverse 
claimant,*  or  be  attached  by  another  officer,^  tlie  lien  of  the  first 
attachment  will  be  lost. 

§  4;"!2.  In  such  cases,  what  act,  what  species  of  possession,  and 
what  degree  of  vigilance,  will  constitute  legal  custody,  is  often  a 
question  of  difficulty,  depending  upon  a  variety  of  circumstances, 
having  respect  to  tlie  nature  and  situation  of  the  property,  and 
the  purposes  for  which  custody  and  vigilance  are  required  ;  such 
as  protection  from  depredation  by  tliieves,  preservation  from  tho 
weather  and  other  causes  of  damage,  and  especially  giving 
notice  to  other  officers,  and  to  all  persons  having  conflicting 
claims.^ 

Where  wood  and  lumber  lying  on  a  wharf  were  attached,  and 
placed  by  the  officer  in  charge  of  a  keeper,  and  on  a  Sunday 
morning  the  keeper  wont  away  from  the  wharf,  and  returned  in 
the  afternoon,  having  in  the  mean  time  secured  the  property  in 
the  manner  usual  on  Sundays,  by  locking  the  gates  of  the  wharf 
and  taking  the  key  with  him  ;  it  was  held,  that  there  was  no 
neglect  on  the  part  of  the  keeper,  that  his  custody  was  still 
legal,  and  that  the  attachment  was  not  abandoned.*  So,  where 
an  attachment  was  levied  on  a  parcel  of  hewn  stones  lying  scat- 
tered about  on  the  ground,  which  were  placed  by  tlie  officer 
in  charge  of  the  plaintiff,  whose  place  of  business  was  about 
fifty  or  sixty  rods  from  the  place  where  the  stones  lay,  and  in 
sight  of  them,  and  whose  boarding-house  was  also  in  sight  of 
them  ;  it  was  held,  that,  though  no  removal  of  the  stones  took 
place,  yet  the  officer  remained  in  the  constructive  possession  of 
them.  The  court  said :  "  It  is  not  necessary,  to  continue  an 
attachment,  that  an  officer  or  his  agent  should  remain  constantly 
in  the  actual  possession.  The  nature  of  the  possession  and 
custody  which  an  officer  is  to  keep,  will  depend  upon  the  nature 
and  position  of  the  property,  as  ships,  rafts,  piles  of  lumber, 
masses  of  stone,  or  lighter,  or  more  portable,  or  more  valuable 

^  Carrington  v.  Smith,  8  Tick.  419.  ^  Sanderson  v.  Edwards,  16  Pick.  144. 

«  Sanderson  v.  Edwards,  16  Tick.  144.  *  Fettyplace  v.  Dutch,  13  Tick.  388. 

[287] 


§  433  DISSOLUTION   OF   AN   ATTACnilENT.  [CIIAP.  XIV. 

goods.  In  general  it  may  be  said  that  it  shall  be  such  a  custody 
as  to  enable  an  officer  to  retain  and  assert  his  power  and  control 
over  the  property,  so  that  it  cannot  probably  be  withdrawn,  or 
taken  by  another  without  his  knowing  it.  Here,  it  is  manifest 
the  officer  did  not  intend  to  abandon  the  attachment,  and  that  the 
measures  he  took,  considering  the  bulky  nature  of  the  property, 
and  the  situation  in  which  it  was  placed,  were  sufficient  to  con- 
tinue his  possession  and  preserve  his  attachment."  * 

§  433.    In  this  connection  may  properly  be  considered  the  effect 
of  the  death  of  the  defendant  upon  an  attachment.     The  decisions 
on  this  subject  arc  few,  and  mostly  so  connected  with  local  statutes 
as  to  have  little  general  api)licability.     Of  this  description  are  the 
reported  cases  in   Maine  and   Massachusetts.     In  a  case  in  the 
latter  State,  where  the  effect  of  the  defendant's  bankruptcy  after 
the  levy  of  an  attachinont  was  under  consideration,  Shaw,  C.  J., 
in   delivering  the  oj)inion  of  the  court,  used   the   following  lan- 
guage :  "  As  a  question  of  policy  and  expediency,  we  are  inclined 
to  the  opinion  that  when  it  becomes  necessary  to  settle  and  close 
up  the  affiiirs  of  a  debtor,  whether  at  his  decease  or  during  his 
life,  true  equity  would  require  that  all  his  property,  which  has 
not  become  appropriated  and  vested  by  his  own  act  or  the  opera- 
tion of  law,  should  i)e  ai.plicd  to  the  payment  of  all  his  debts, 
and  that  an  attachment  on  mesne  process,  being  a  sequestration 
of  his  property,  and  placing  it  provisionally  in  the  custody  of  the 
law,  should  give  way  to  the  more  general  sequestration  of  all  his 
property  for  the  satisfaction  of  all  his  debts.     In  that  case  the 
creditor  will  receive  the  whole  amount  of  his  debt,  if  there  be 
assets,  and  his  satisfaction  pro  rata,  if  there  be  a  deficit ;  and  as 
between  him  and  other  creditors  there  seems  no  equitiible  ground 
on  which  he  should  have  more.     Such  is  the  law  in  Massachusetts 
in  regard  to  the  settlement  of  the  estate  of  a  deceased  insolvent 
debtor,  whore  the  settlement  and  distribution  of  the  estate  must 
necessarily  be  final.     Upon  the  appointment  of  an  administrator, 
who  takes  the  property  as  trustee  for  all  the  creditors,  all  attach- 
ments on  Qiiesne  process  are  dissolved."  ^ 

In  Pennsylvania,  where  a  foreign  attachment,  as  under  the 
custom  of  London,  is  a  process  to  compel  the  appearance  of  a 
non-resident  debtor,  by  distress  and  sale  of  the  property  attached, 

1  Hemmcnway  i;.  Wheeler,  14  Pick.  408.       2  Davenport  v.  Tilton,  10  Metcalf.  320. 
[288] 


CHAP.  XVI.']  DISSOLUTION   OF   AN  ATTACHMENT.  §  433 

it  is  held,  that  the  deatli  of  the  defendant  before  final  judgment 
dissolves  the  attachment,  if  he  shall  not  have  entered  special 
bail.  But  his  death  after  final  judgment  does  not  have  that 
effect.  In  the  case  in  which  these  points  were  decided,  the  court 
say  :  "  If  these  proceedings  were  in  all  respects  in  rem,  they  would 
not  abate  by  the  death  of  the  defendant.  For  some  purposes  they 
are  to  be  so  considered ;  for  execution  can  only  be  against  the 
goods  attached,  and  not  against  the  person  of  the  defendant ;  but 
to  every  purpose  they  are  not ;  fur  by  entering  special  bail,  the 
attaclnncnt  is  dissolved,  and  it  then  becomes  a  mere  personal 
action."  ^  The  United  States  Circuit  Court  for  the  District  of 
Columbia  held  the  same  position.^ 

In  Louisiana,  it  was  decided  that  an  attaching  creditor  acquires 
no  privilege  upon  the  property  of  a  debtor,  in  that  State,  who  dies 
during  the  pendency  of  the  suit,  and  whoso  estate  is  administered 
upon  there,  so  as  to  entitle  him  to  priority  of  payment  out  of  the 
assets  of  the  estate.^ 

In  Tennessee  the  rule  is,  that,  if  the  defendant  die  pendente  lite, 
no  judgmoiit  can  be  rendered  without  making  his  administrator  a 
party  ;  and  after  judgment  against  the  administrator,  no  order  for 
the  sale  of  real  estate  attached  can  be  made,  without  making  the 
heirs  parties  to  the  proceeding ;  *  but  where  these  steps  were  taken, 
the  court  ordered  a  sale  of  the  land  ;  wliich  was  in  effect  to  hold 
that  the  attachment  was  not  dissolved  by  the  death  of  the  defendant." 

In  Missouri,  it  was  decided  that  the  death  of  the  defendant 
before  judgment  dissolves  the  attachment  ;^  and  that  if  the  death 
take  place  after  the  rendition  of  a  judgment  without  personal 
service,  and  tlierefore  binding  only  the  property  attached,  the 
same  result  will  follow.'^ 

In  South  Carolina  it  was  held,  that  a  foreign  attachment  abates 
by  the  death  of  the  defendant  pending  the  suit ;  but  when  the 
garnishee  has  made  default,  judgment  may  bo  had  against  him 
after  the  defendant's  death.^ 

1  Fitch  V.  Ross,  4  Sergeant  &  Rawle,  557. 

2  Pancost  V.  Wa.shin','ton,  5  Craneh,  C.  C.  507. 
'  Collins  r.  Duffy,  7  Louisiana  Annual,  39. 

*  Green  v.  Shaver,  3  Humphreys,  139. 

'  Perkins  v.  Xorvcll,  6  Humphreys,  151. 

•  Sweringcn  v.  Ebcrius,  7  Missouri,  421. 
'  Harrison  i:  Renfro,  13  Missouri,  446. 

«  Kennedy  r.  Raguet,  1  Bay,  484 ;  Crocker  it.  Radcliffe,  1  Constitutional  Conrt  Eep. 
(Treadway),  83. 

19  [289] 


§  435  DISSOLUTION  OF  AN   ATTACHMENT.  [CHAP.  IVL 

In  New  York  it  was  held,  that  the  plaiutiff  acquired  by  tho 
attachmeut  a  right  in  the  property  attached,  which  could  not  bo 
defeated  by  the  death  of  the  defendant,  if  the  action  survived, 
and  the  court  had  power  to  continue  it  against  the  representative.* 

§  433  a.  Whatever  diversity  of  views  may  exist,  as  to  the  effect 
upon  a  pending  attachment  of  the  death  of  the  defendant,  there 
can  be  no  doubt  that  a  suit  by  attachment,  commenced  after  tho 
death  of  the  defendant,  is  utterly  void,  and  therefore  tliat  no  at- 
tachment of  property,  or  proceeding  by  garnishment,  in  such  suit, 
can  have  any  validity  whatever.^ 

§  434.  The  same  views  which  would  abate  or  dissolve  an  at- 
tachment upon  the  death  of  a  person,  would  produce  a  like  result 
in  the  case  of  the  civil  death  of  a  corporation  ;  and  it  has  been  so 
decided  in  Pennsylvania  and  Alal)ama.' 

§  435.  In  this  connection,  too,  may  properly  bo  considered  the 
efieet  upon  an  attachment  of  an  act  of  bankruptcy  committed  by 
the  defendant  after  the  levy  of  the  writ.  Does  that  act  dissolve 
an  attachment  previously  made  ?  This  question  has  excited  elab- 
orate discussion  by  some  of  the  first  jurists  of  the  country.  It 
will  at  once  be  seen  to  turn  altogether  on  the  point  whether  an 
attachment  is  a  lien,  in  such  sense  as  to  be  within  that  clause  of 
tho  Bankrupt  Law  which  protects  existing  liens  against  the  opera- 
tion of  the  law.  If  a  lien,  the  attachment  cannot  i)e  dissolved  by 
an  act  of  bankruptcy  on  the  part  of  the  defendant. 

The  late  Justice  Story,  on  more  than  one  occasion,  during  the 
existence  of  the  General  Bankrupt  Act  of  1841,  decided  that  an 
attachment  was  not  a  lien,  either  in  the  sense  of  the  common  law, 
or  of  the  maritime  law,  or  of  equity ;  but  only  a  contingent  aiid 
conditional  charge,  until  the  judgment  and  levy ;  and  therefore 
was  dissolved  by  the  defendant's  bankruptcy.^  In  this  judgment, 
that  learned  jurist  stood  opposed  by  every  other  tribunal  in  the 

1  Moore  v.  Thayer,  10  Barbonr,  258 ;  s.  c.  6  Howard  Pract.  R.  47  ;  3  Code  Reporter, 
176  ;  Thacher  v.  Bancroft,  15  Abbott  Pract.  R.  243. 

2  Lorini:  v.  Folger,  7  Gray,  505. 

3  Farmers  and  Mechanics'  Bank  v.  Little,  8  Watts  &  Sergeant,  207 ;  Paschall  v, 
Whitsett,  11  Alabama,  472.  In  LindcU  v.  Benton,  6  Missouri,  361,  it  was  held,  that 
the  civil  death  of  a  corporation,  after  the  garnishment  of  its  debtor,  did  not  prevent 
the  subjection  of  the  garnishee  to  liability. 

*  Foster's  Case,  2  Story,  131 ;  Bellows  and  Peck's  Case,  3  Story,  428. 
[290] 


CHAP.  XVI  ]  DISSOLUTION    OF   AN   ATTACHMENT.  §  435 

United  States  before  which  the  question  was  made,  except  the 
Supreme  Court  of  Louisiana.^  The  great  weight  attached  to  his 
views  on  any  question  led,  after  the  promulgation  of  those  decis- 
ions, to  several  very  able  opmious  in  favor  of  the  opposite  conclu- 
sion. Indeed,  in  every  instance  where  the  subject  was  passed 
upon,  with  tlie  single  exception  just  named,  the  lien  of  the  attach- 
ment was  sustained.  The  District  Court  of  the  United  States  for 
Vermont,-  the  late  Justice  Tliompson,  of  the  Supreme  Court  of  the 
United  States,^  and  the  Supreme  Courts  of  Maine,*  New  Hamp- 
shire,'' Massacimsetts,^  New  Jersey,"  and  Mississippi,^  all  concurred 
hi  that  rcbult.  The  Supreme  Court  of  Connecticut,  in  a  case 
arising  under  the  Bankrupt  Act  of  1800,  also  held  views  opposed 
to  those  of  Justice  Story .'^  We  are  therefore  justified  in  consider- 
ing it  settled  that  an  attachment  is  not  dissolved  by  the  bankruptcy 
of  the  defendant. 

i  Fisher  v.  Vose,  3  Robinson  (La.),  457. 

*  DowiRT  V.  lirackctt,  5  Law  Reporter,  392 ;  8.  c.  21  Vermont,  599 ;  Eowell's  Case, 
6  Law  Rcporifr,  3(X) ;  8.  c.  21  Vermont,  620. 

•  Haii;,'liton  v.  Kustis,  5  Law  Reporter,  503. 

♦  Franklin  Bank  v.  Batchclder,  23  Maine,  60. 

'  Kittrc<l;,'e  v.  Warren,  14  New  llaiup.  509;   Kittredge  v.  Emerson,  15  Ibid.  227; 
Buffum  r.  Seaver,  16  Ibid.  160. 

*  Daven|iort  v.  Tilton,  10  Metcalf,  320. 
'>  Vretland  i*.  Brown,  1  Zabriikie,  214. 

•  Wells  r.  Brunder,  10  Sniedes  &  Marshall,  348. 

•  Inirraliam  r.  Phillips,  1  Day,  117. 

[2D1] 


§  437  NOTICE  TO  DEFENDANTS  BY   PUBUCATIONf.      [CHAI'.  XVTL 


•      CHAPTER    XVII. 

NOTICE   TO   ABSENT   DEFENDANTS   BT   PUBUCATION. 

§  436.  The  mere  issue  of  a  writ  of  attachment,  ami  levying  it 
on  the  property  of  the  defendant,  without  service  of  j)rocess  on 
him,  without  notice  to  him  in  any  way,  and  without  appearance 
on  his  part,  is  not  a  sufficient  foundation  for  a  judgment  in  the 
attacluncnt  suit  against  hini.^  And  as  in  many  cases  the  absence 
of  the  defendant  would  preclude  the  possibility  of  service  of  pro- 
cess on  him,  provision  is  usually  made  in  attachment  laws  for 
notice  by  puljlication  to  absent  defendants,  of  the  institution  and 
pendency  of  attachment  suits  against  them,  in  order  that  they 
may,  if  they  see  proper,  appear  and  defend.  This  is  one  of  the 
guards  provided  for  the  protection  of  defendants,  and  the  require- 
ments of  every  statute  in  this  respect  should  be  strictly  enforced. 

§  437.  This  notice  is  not  necessary  to  give  the  court  jurisdiction 
of  the  action.  Its  object  is  simply  to  inform  the  defendant,  if  pos- 
sible, that  proceedings  have  been  taken  against  him.  Whether  a 
court  has  jurisdiction  of  any  particular  proceeding  is  determined 
by  establishing  its  authority  to  take  the  first  step  therein.  Whether 
it  can  legally  cuntinue  to  exercise  that  jurisdiction,  de{>ends  upon 
the  taking  of  the  proper  steps  after  the  first.  When,  therefore,  in 
an  attachment  cause,  the  ground  required  by  statute  has  been  laid 
for  the  issue  and  execution  of  the  process,  and  the  process  has 
been  issued  and  executed,  the  jurisdiction  of  the  court  has  at- 
tached. If  this  ground  be  not  laid,  there  is  no  right  to  take  the 
first  step,  and  that  and  all  subsequent  ones  are  simply  void. 
When,  however,  jurisdiction  has  been  attained,  the  suljsequent 
proceedings  must  conform  to  the  law,  in  order  to  make  the  action 
of  the  court  effectual.  Want  of  such  conformity  will  be  error, 
and,  therefore,  a  good  ground  for  reversing  the  judgment  of  the 
court ;  but  will  not  make  the  proceedings  void.  When,  therefore, 
notice  to  the  defendant  by  publication  is  required,  it  is  not  an  ele-  * 

1  Edwards  v.  Toomer,  14  Smedcs  &  Marshall,  75;   Ridley  v.  Ridley,  24  Mississippi, 
648;  Martin  v.  Dryden,  6  Illinois  (I  GilmanJ,  187. 
[292] 


CHAP.  XVII.]      NOTICE   TO   DEFENDANTS   BY   PUBUCATION.  §  441 

meiit  of  the  jurisdiction  of  the  court,  but  is  necessary  to  authorize 
the  court  to  exercise  its  jurisdiction  by  giving  judgment  in  the 
cause.^  And  it  must  appear  in  the  record  that  the  court  had  sat- 
isfactory evidence  that  the  notice  was  given,  or  the  evidence  itself 
must  be  therein  set  out.^ 

§  438.  This  subject  presents  itself  in  a  twofold  aspect :  1.  As 
to  the  sufTicioncy  of  the  notice,  as  the  foundation  for  further  pro- 
ceedings in  tlie  cause  ;  and,  2.  As  to  the  efifect  of  failing  to  publish 
notice,  or  of  pubhshing  an  insufficient  one,  upon  the  validity  of 
the  subsequent  proceedings  in  the  suit,  when  afterwards  called  in 
question  inter  alios. 

§  439.  Under  the  first  liead,  the  sufficiency  of  the  notice  to 
authorize  judgment  against  the  delendant  depends  upon  its  con- 
formity to  the  statute  in  its  terms  and  its  publication.  As  to  the 
terms,  there  should  be  a  substantial,  if  not  a  strict  compliance 
with  the  law.  Tiierefure,  wliere  the  advertisement  was  required 
to  "  state  the  names  of  the  parties,  the  day,  month,  and  year, 
when,  and  from  what  court,  and  for  whiit  sum,  the  writ  issued," 
and  it  omitted  to  state  the  day,  month,  and  year  when  tlie  writ 
issued,  it  was  held  to  be  insufficient.^ 

§  440.  In  Missouri,  wiiere  the  statute  required  "  the  court  to 
order  a  publication  to  be  made,  stating  the  nature  and  amount  of 
the  plaintilT's  demand,"  <fcc.,  it  was  held  that  stating  in  the  notice 
"that  an  action  of  assumpsit  for  the  sum  of  84U3.T0  had  been 
commenced  against  him,"  was  a  sufficient  statement  of  the  nature 
of  the  plaintiff's  demand.^ 

§  441.  In  Michigan,  the  statute  requires  the  clerk,  upon  the 
return  of  the  writ,  to  make  out  an  advertisement,  stating  the 
names  of  the  parties,  the  time  when,  from  what  court,  and  for 
what  sum,  the  writ  was  issued.  A  notice  containing  all  the  statute 
required,  was  made  out  and  published,  bearing  date  November  23, 
1843,  and  stating  that  the  writ  was  issued  on  the  12th  of  June, 

'  Paine  v.  Moortland,  15  Ohio,  4.35;  Williams  v.  Stewart,  3  Wisconsin,  773;   Beech 
".  Alihott,  6  Vermont,  586.     Std  contra,  Calhoun  v.  Ware,  34  Mississippi,  146. 
-  Fuvks  1-.  Kelso,  1  Blackford,  213;  Ua^wooU  v.  McCrory,  33  Lliaois,  459. 

•  Ford  r.  Wilson,  Tappan,  235. 

*  Sloan  V.  Forse,  11  ^li^souri,  126. 

[293] 


§  445  NOTICE   TO   DEFENDANTS   BY   PUBLICATION.      [(MAP.  XVU. 

1843,  and  was  "returnable  to  the  second  Tuesday  after  the  first 
]!i[onday  in  November  next'''  instead  of  instant.  It  was  bold  to  bo 
a  mere  clerical  nustuke,  which  would  not  mislead,  and  did  not 
vitiate  the  proceeding.^ 

§  442.  In  regard  to  the  time  of  publication,  it  was  held,  that 
where  publication  was  required  to  be  made  for  two  months,  it  was 
not  sufficient  to  publish  it  for  eight  weeks.* 

§  443.  Under  a  statute  requiring  notice  to  be  published  for  four 
weeks  successivelj,  an  affidavit  was  made  stating  that  it  had  been 
so  published,  once  every  week,  commencing  on  the  24th  of  April 
and  ending  on  the  5th  of  May  ;  and  it  was  held,  that  the  state- 
ment that  it  liad  been  published  four  weeks  successively  was  suf- 
ficient, and  the  additional  statcnuMit  assigning  the  dates  of  the 
commencement  and  conclusion  of  the  publication,  was  surj)lusage, 
and  did  not  vitiate  the  previous  general  statement.^ 

§  444.  Where  the  law  provided  that  the  defendant  should  bo 
notified  of  the  pendency  of  the  attachment,  by  publication  of  a 
notice  in  a  newspaper  for  four  weeks  successively ;  and,  in  case 
sixty  days  should  not  intervene  between  the  first  insertion  of  the 
notice  and  the  first  term  of  the  court,  the  cause  should  be  con- 
tinued ;  it  was  held,  that  the  proper  rule  for  the  computation  of 
time  in  such  case,  was  to  exclude  the  day  on  which  the  notice 
was  first  inserted,  and  include  the  day  on  which  the  term  com- 
menced ;  and  that  a  notice  first  inserted  on  the  27th  of  May,  was 
not  good  for  a  term  of  court  beginning  on  the  25th  of  July.* 

§  445.  "Where  the  law  declared  that  no  judgment  should  be 
entered  on  the  attachment  until  the  expiration  of  twelve  months ; 
during  which  time  the  plaintifi'  should  cause  notice  of  the  attach- 
ment to  be  advertised  three  weeks  successively  in  a  public  news- 
paper ;  it  was  held,  that  publication  at  any  time  within  the  twelve 
months  was  sufficient.^  And  where  the  statute  does  not  fix  any 
time  within  which  the  publication  shall  be  commenced,  it  was  held, 

1  Drew  V.  Dequindre,  2  Douglass,  93. 
-  Pyle  V.  Cravens,  4  Littell,  17 ;  Lawlin  v.  Clay,  Ibid.  283. 
8  Swavze  v.  Doe,  13  Sinedes  &  ISIarshall,  317. 
*  Vairin  v.  Edmonson,  10  Illinois  (5  Oilman),  270. 
6  Harlow  v.  Becktle,  1  Blackford,  237. 
[294] 


CHAP.  XVII.]      NOTICE   TO   DEFEND-\NTS   BY   PUBLICATION.  §  448 

that  a  delay  of  publication  for  two  years  and  a  half  was  not  a  suf- 
ficient ground  for  setting  aside  the  attachment  proceedings.^ 

§  446.  A  common  occurrence  is  for  legislatures  to  change  the 
times  of  holding  courts.  Where  by  any  such  law  the  term  of  a 
court  is  fixed  for  a  time  anterior  to  that  at  which  it  was  formerly 
established,  and  the  full  time  required  by  law  for  publication  of 
notice  is  thereby  abridged,  no  proceedings  in  the  attachment  suit, 
depending  for  their  validity  upon  the  correct  publication  of  the 
notice,  can  properly  be  taken.  Tlierefore,  where  the  law  required 
publication  for  six  months,  and  after  publication  was  ordered,  the 
legislature  passed  a  law  requiring  the  court  to  be  held  at  an  earlier 
day  than  before,  which  allowed  only  four  months  for  publication, 
and  judgment  was  taken  at  the  end  of  four  months,  it  was  con- 
sidered erroneous,  and  was  reversed.^ 

§  447.  But  a  much  more  serious  question  than  any  that  have 
been  mentioned,  arises  when  title  is  claimed  under  judgments  in 
attachment  cases,  where  there  has  been  insufficient  publication, 
or  none  at  all.  Upon  this  point,  it  was  decided  in  Indiana,  in  an 
action  of  ejectment  for  the  recovery  of  land,  purchased  at  sheriff's 
sale  in  an  attachment  suit,  that  insufficiency  of  jmblication  did  not 
invalidate  the  proceedings,  so  as  to  allow  them  to  be  impeached 
collaterally.^ 

§  448.  In  Ohio,  in  a  similar  case,  it  was  at  one  time  held,  that 
the  fact  of  the  notice  required  by  statute  not  having  been  given, 
made  the  judgment  and  sale  under  it  void,  and  that  the  purchaser 
at  the  sale  accjuired  no  title ;  *  but  the  Supreme  Court  of  that  State 
afterwards  reversed  itself  on  this  point,  and  held,  as  has  also  been 
held  in  Vermont,-^  New  York,^  and  Wisconsin,"  that  the  proceed- 
ings of  the  court  are  not  so  invalidated  by  the  failure  to  make 
publication,  as  to  make  the  sale  under  them  void.^     But  in  Mary- 

1  Matter  of  Clark,  3  Denio,  167. 

2  Satraracus  v.  Bennett,  6  Howard  (Mi.),  277;  Colwell  v.  Bank  of  Steubenville,  2 
Ohio,  229,  2d  Edition,  .'{77. 

*  Zei;;enha<;en  r.  Doe,  1  Indiana,  296. 

*  Warner  r.  Webster,  1.3  Ohio,  505. 
6  Beech  r.  Alibott,  6  Vermont,  586. 
8  Matter  of  Clark,  .3  Denio,  167. 

'  Williams  v.  Stewart,  .3  Wisconsin,  773. 

8  Paine  v.  Mooreland,  15  Ohio,  435.     In  this  case  the  action  was  ejectment,  and  the 

[295] 


§  448  NOTICE   TO   DEFENDANTS   BY   PUBLICATION.      [CHAP.  XVU. 

land  a  judgment  rendered  without  notice,  personal  or  constructive, 
to  the  defendant,  or  appearance  by  him,  is  wholly  void,  though 
property  bo  attached.^ 

defendant  claimed  title  under  a  sheriff's  deed,  made  in  pursuance  of  a  sale  under  exe- 
cution, in  an  attachment  suit,  where  the  notice  required  by  statute  was  not  given.  This 
title  was  imi)cached  on  the  ground  of  the  nullity  of  the  proceedings  in  the  attachment 
suit.     We  present  the  opinion  of  the  court  on  this  point. 

"Are  the  proceedings  in  attachment  void?  It  is  contended  they  are  void,  because 
no  notice  of  the  pendency  of  the  attachment  was  given,  as  required  by  the  statnte.  If 
the  jurisdiction  of  the  court  once  attached,  subsequent  irregularities  would  render  the 
judgment  voidable  only ;  and  it  would  remain  valid  until  reversed,  and  cannot  be  im- 
peached collaterally. 

"What,  then,  gives  the  court  jurisdiction  in  a  proceeding  in  attachment?  The  filing 
of  the  proper  affidavit,  issuing  the  writ,  and  attaching  the  property.  The  moment  the 
writ  goes  into  the  hands  of  the  officer,  he  is  authorized  and  required  to  seize  the  prop- 
erty. When  this  is  done,  the  property  is  taken  out  of  the  jKjssession  of  the  debtor  into 
the  custody  of  the  law.  The  court  have  authority,  at  any  time  after  the  return  of  the 
writ,  to  direct  property  of  a  perishable  nature  to  be  sold.  It  is  not  until  after  the 
return  of  the  writ  that  the  clerk  is  directed  to  make  out  the  advertisement,  which  the 
plaintiff  is  required  to  have  published  as  the  statute  directs.  If  lie  neglects  to  have 
such  notice  published,  for  six  weeks  successively,  the  statute  directs  that  the  attachment 
shall  be  dismissed  with  costs.  Here,  then,  for  a  period  of  six  weeks,  at  least,  if  the 
publication  of  the  notice  only  gives  jurisdiction,  the  court  both  have  and  have  not  ju- 
risdiction over  the  proi)erty  seized  in  attachment.  It  is  contended  the  court  has  no 
jurisdiction,  and  yet  the  statute  authcjrizes  the  court  to  exercise  a  judicial  act  over 
property  attached,  namely,  to  determine  whether  it  is  perishable,  and  if  so,  to  direct  its 
sale.  Will  it  be  contended,  then,  that  the  court  has  jurisdiction  over  perishable  prop- 
erty before  notice  consummated,  but  not  over  property  not  perishable  ?  This  is  a  dis- 
tinction not  authorized  by  the  statute. 

"A  court  acquires  jurisdiction  by  its  own  process.  If  the  process  of  the  court  be 
executed  upon  the  person  or  thing  concerning  which  the  court  are  to  pronounce  judg- 
ment, jurisdiction  is  acquired.  The  writ  draws  the  person  or  thing  within  the  power 
of  the  court;  the  court  once  having  by  its  process  acquired  the  power  to  adjudicate 
upon  a  person  or  thing,  it  has  what  is  called  jurisdiction.  This  power  or  jurisdiction 
is  acquired  only  by  its  process.  To  give  jurisdiction  is  the  object  of  process.  The  mode 
of  executing  or  serving  process,  is  sometimes  directed  or  permitted  to  be  by  notice  of 
publication.  All  process  issues  under  the  seal  of  the  court.  Notice  by  publication  is 
not  process,  but,  in  certain  cases  in  contemplation  of  law,  is  equivalent  to  service  of 
process.  The  process  in  attachment  is  the  writ  authorizing  and  directing  a  seizure 
of  the  property.  No  process  is  issued  against  the  person,  because  the  proceeding  is  in 
rem.  The  statute,  however,  regards  it  but  just  that  notice  should  be  given  to  the 
debtor,  not  for  the  purpose  of  giving  the  court  jurisdiction  over  the  subject-matter,  but 
to  permit  the  debtor  to  have  an  opportunity  to  protect  his  rights,  and  directs  that  the 
writ  shall  be  quashed  if  it  be  not  given.  The  distinction  is  between  a  lack  of  power  or 
•want  of  jurisdiction  in  the  court,  and  a  wi'ongful  or  defective  execution  of  the  power. 
In  the  first  instance,  all  acts  of  the  court  not  having  jurisdiction  or  power,  are  void, — 
in  the  latter,  voidable  only.  A  court,  then,  may  act,  first  without  power  or  jurisdic- 
tion ;  second,  having  power  or  jurisdiction,  may  exercise  it  wrongfully ;  or,  third,  ir- 
reo-ularlv.  In  the  first  instance,  the  act  or  judgment  of  the  court  is  wholly  void,  and 
is  as  though  it  had  not  been  done.  The  second  is  wrong,  and  must  l>c  reversed -on 
error.  The  third  is  irregular,  and  must  be  corrected  by  motion.  The  latter  is  where 
the  power  is  rightfully  exercised,  but  in  an  irregular  way.     Hence  there  is  a  vast  dis- 

1  Clark  V.  Bryan,  16  Maryland,  171. 
[296] 


CHAP.  XVII.]      NOTICE   TO  DEFENDANTS   BY  PUBLICATION.  §  449 

§  449.  But  where  no  process  is  served  on  the  defendant,  nor 
property  attached,  nor  garnishee  charged,  nor  appearance  entered, 
a  judgment  against  the  defendant,  based  on  a  publication  of  the 
pendency  of  the  suit,  will  be  void,  and  may  be  impeached  collat- 
erally, or  otherwise,  and  forms  no  bar  to  a  recovery  sought  in 
opposition  to  it,  nor  any  foundation  for  a  title  claimed  under  it.^ 

tinction  between  a  defect  of  power,  a  wrongful  exercise  of  power,  and  an  irregular 
exercise  of  power. 

"Now,  what  has  happened  in  this  instance  ?  The  court  had  the  power,  by  the  service 
of  its  process,  to  proceed  and  give  judgment;  but  a  circumstance  occurred,  after  having 
acquired  sudi  power,  which  forbade  them  the  exercise  of  it;  but  having  it,  they  did 
exercise  it,  which  was  error.     But  it  can  only  be  corrected  by  a  writ  of  error. 

"  We  rest  the  case,  nakedly,  upon  the  ground,  so  far  as  the  proceedings  in  attachment 
are  concerned,  that  there  was  a  judgment  of  a  court  of  competent  jurisdiction,  unre- 
versed, conferring  the  power  to  sell  the  land  in  question,  which  cannot  be  impeached 
in  this'  coliatcrarway ;  that  the  defects  and  irr^ailaritics  complained  of  should  have 
been  remedied  bv  writ  of  error,  or  motion." 

1  Eaton  V.  Badger,  33  New  Hamp.  228 ;  Carleton  v.  Washington  Ins.  Co.  35  Ibid 
102;  Ante,  §5.  •  ^^971 


§  452  GARNI^HilENT.  —  GENERAL   VIEWS.  [cHAP.  XVIIL 

CHAPTER    XVIII. 

GARNISHMENT. GENERAL   VIEWS.  —  DIVISION   OF   THE   SUBJECT. 

§  450.  We  come  now  to  that  operation  of  an  attachment, 
whereby  property  that  cannot  be  seized  may  be  reached  by  the 
process,  and  debts  due  to  the  defendant  may  be  subjected  to  the 
payment  of  his  debts.  This  is  the  sole  and  distinctive  feature  of 
attachment  by  the  custom  of  London,  from  which,  as  before  re- 
marked, have  sprung  the  systems  of  attachment  laws  in  the 
United  States. 

§451.  The  peculiar  operation,  of  the  process,  by  which  effects 
of  the  defendant  which  cannot  be  seized  and  taken  into  custody 
may  still  be  rendered  liable  to  the  payment  of  his  debts,  has  re- 
ceived the  designation  of  garnishment^  or  warning,  and  the  person 
in  whose  hands  such  effects  are  attached  is  styled  a  garnishee,  be- 
cause of  his  being  garnished,^  or  warned,  not  to  pay  the  money  or 
deliver  the  property  of  the  defendant  in  his  hands  to  him,  but  to 
appear  and  answer  the  plaintiff's  suit.^  This  designation  exists 
in  all  the  States,  except  those  of  New  England,  where  the  party 
so  warned  is  called  a  trustee,  and  the  process  under  which  he  is 
warned  is  called  trustee  process.  In  Vermont  and  Connecticut,  he 
is  also  sometimes  called  di  factor,  and  the  process,  factorizing  process. 
The  terms  garnishment  and  garnishee  being,  however,  so  nearly  of 
universal  use,  will  be  retained  throughout  this  work. 

§  452.  Garnishment  is  in  the  nature  of  a  proceeding  in  rem, 
since  its  aim  is  to  invest  the  plaintiff  with  the  right  and  power  to 
appropriate,  to  the  satisfaction  of  his  claim  against  the  defendant, 
property  of  the  defendant's  in  the  garnishee's  hands,  or  a  debt  due 
from  the  garnishee  to  the  defendant.^    It  is,  in  effect,  a  suit  by  the 

1  This  being  the  first  instance  of  the  use  of  this  word  in  this  book,  I  deem  it  proper 
to  remark,  that  I  have  studiously  avoided  the  very  prevalent  —  indeed,  almost  univer- 
sal —  corruption  of  it  into  "  garnishced,"  which  disfigures  the  Eeports  of  this  country. 
I  have,  with  equal  care,  shunned  the  displacement  of  the  words  "  garnish  "  and  "  gar- 
nishing," by  "garnishee"  (used  as  a  verb),  and  " garnisheeing." 

-  Priv.  Londini,  256 ;  Comyns's  Digest,  Attachment,  E. 

2  111  Strong  V.  Smith,  1  Metcalf,  476,  the  Supreme  Court  of  Massachusetts,  said : 


CHAP.  XVm.]  GARNISHMENT.  —  GENERAL   VIEWS.  §  452 

defendant,  in  the  plaintiff's  name,  against  the  garnishee,  without 
reference  to  the  defendant's  concurrence,  and,  indeed,  in  opposi- 
tion to  his  will.  Hence  tlie  plaintiff  usually  occupies,  as  against 
the  garnishee,  just  the  position  of  the  defendant,  with  no  more 
rights  than  the  defendant  had,  and  liable  to  be  met  by  any  defence 
which  the  garnishee  might  make  against  an  action  by  the  defend- 
ant. Where,  however,  the  garnishee  holds  property  of  the  de- 
fendant under  a  fraudulent  transfer  or  arrangement,  the  right  of 
the  plaintiff  to  hold  the  garnishee  is  not  limited  by  the  defendant's 
right  against  the  latter.  And  there  are  other  cases,  as  we  shall 
hereafter  see,  in  which  a  garnishee  may  be  held,  though  the  de- 
fendant could  not  at  the  time  of  the  garnishment  maintain  an 
action  against  him.^ 

Garnishment  is  not  only  in  effect  a  suit  by  the  defendant  in  the 
plaintiff's  name  against  the  garnishee,  but  it  has  in  several  in- 
stances been  held  to  be  in  fact  a  suit,  in  the  legal  acceptation  of 
the  term.  In  Alabama,  garnishment  was  regarded  as  a  suit,  where 
an  administrator  was  garnished,  within  six  months  after  grant  of 
letters  of  administration,  and  the  proceeding  was  objected  to,  be- 
cause of  a  statutory  provision  which  declared  that  "  no  suit  must 
be  commenced  against  an  administrator  as  such,  until  six  months 
after  the  grant  of  letters  of  administration."  ^  In  the  Circuit 
Court  of  the  United  States  in  Arkansas,  before  Daniel,  J.,  the 
question  came  up  in  this  shape.  A.,  a  citizen  of  Arkansas,  re- 
covered judgment  in  that  court  against  B.,  a  citizen  of  Texas,  and 
issued  execution  thereon,  under  which,  in  conformity  with  a 
statute  of  Arkansas,  C,  a  citizen  of  that  State,  was  summoned  as 
garnishee.  Tlie  question  was,  whether,  as  the  plaintiff  and  the 
garnishee  were  citizens  of  the  same  State,  the  court  had  jurisdic- 
tion of  the  proceeding.  If  the  garnishment  was  a  suit,  it  came 
within  the  provision  prohibiting  the  court  from  taking  jurisdiction 
of  a  suit  between  citizens  of  the  same  State.  The  court,  in  the 
following  terms,  held  it  to  be  a  suit :  "  The  proceeding  must  be 
regarded  as  a  civil  suit,  and  not  as  a  process  of  execution  to  en- 

"  The  trustee  process  operates  as  a  species  of  compulsory  statute  assignment,  by  which 
a  creditor  may  obtain  that  by  operation  of  law  which  his  debtor  might  voluntarily 
assign  to  him,  in  payment  of  his  debt." 

1  Post,  §  464. 

2  Moore  v.  Stainton,  22  Alabama,  831 ;  Travis  v.  Tartt,  8  Ibid.  574.  See  Thorn  v. 
Woodruff,  5  Arkansas,  55 ;  Gorman  v.  Swaggerty,  4  Sneed,  560 ;  Jones  v.  New  York 
&  Erie  R.  R.  Co.,  1  Grant,  457 ;  Malley  v.  Altman,  14  Wisconsin,  22. 

[299] 


§  453  GARXISHilENT.  —  GENERAL   VIEWS.  [cnAP.  XVin. 

force  a  judgment  already  rendered.  It  may  be  used  as  a  means 
to  obtain  satisfaction  of  a  demand,  in  the  same  manner  as  a  suit 
may  be  resorted  to  on  a  judgment  of  another  State,  witli  a  view  to 
coerce  the  payment  of  such  judgment.  In  this  proceeding  the 
parties  have  day  in  court ;  an  issue  of  fact  may  be  tried  by  a  jury, 
evidence  adduced,  judgment  rendered,  costs  adjudged,  and  execu- 
tion issued  on  the  judgment.  It  is  in  every  respect  a  suit,  in  which 
the  primary  object  is  to  obtain  judgment  against  the  garnishee,  and 
certainly  cannot  with  any  ])lausibility  be  treated  as  process  of  exe- 
cution, or  as  part  of  the  execution  process ;  for  if  so,  there  could 
be  no  necessity  or  propriety  in  resorting  to  this  forum  to  investi- 
gate the  relations  of  debtor  and  creditor."  ^ 

§  458.  Garnishment  is  an  effectual  attachment  of  the  effects  of 
the  defendant  in  the  garnishee's  hands,^  differing  in  no  essential 
respect  from  attachment  l)y  levy,  except,  as  is  said,  that  the  j)lain- 
tiff  does  not  acquire  a  clear  and  full  lien  upon  the  specific  property 
in  the  garnishee's  possession,  but  only  such  a  lien  as  gives  him  tho 
right  to  hold  the  garnishee  personally  liable  for  it  or  its  value.^ 
The  defendant's  rights  in  the  property  are  so  far  extinguished,  as 
to  prevent  his  making  any  disposition  of  it  which  would  interfere 
with  its  subjection  to  the  payment  of  the  plaintiff's  demand,  when 
that  shall  have  been  legally  perfected ;  but  for  every  purpose  of 
making  any  demand  which  may  be  necessary  to  fix  the  garnishee's 
liability  to  him,  or  of  securing  it  by  legal  proceedings  or  otherwise, 

1  Tiinstall  f.  "Worthington,  Hempstead,  662.  Std  contra,  Kiddcrlin  v.  Mycr,  2 
Miles,  242. 

-  Kennedy  c.  Brent,  6  Cranch,  187;  Parker  v.  Kinsman,  8  Mass.  436;  Blaisdell  v. 
Ladd,  14  New  Ilanip.  129  ;  Burlin;:amc  v.  Bell,  16  Mass.  318 ;  Swett  i-.  Brown,  3  Pick. 
178;  Tindell  v.  Wall,  Busbeo,  3;  Tillinirhast  i-.  Johnson,  b  Alabama,  514;  Thompson 
V.  Allen,  4  Stewart  &  Porter,  184;  Bryan  v.  Lashley,  13  Smedcs  &  Marshall,  284; 
Watkins  v.  Field,  6  Arkansas,  391  ;  Martin  r.  Foreman,  18  Ibid.  249;  Hacker  i;.  Ste- 
vens, 4  McLean,  535. 

3  Walcott  r.  Keith,  2  Foster,  196;  Moore  v.  Holt,  10  Grattan,  284;  Johnson  r.  Gor- 
ham,  6  California,  195.  It  is  a  common  expression  by  coarts,  that  by  garnishment  the 
plaintiff  acquires  a  lien  on  the  debt  due  fi-om  the  garnishee  to  the  defendant ;  but  per- 
iiaps  the  view  stated  in  the  text  is  the  more  proper  one.  In  Illinois  it  was  held,  that 
garnishment  imposes  no  lien  upon  the  effects  in  the  garnishee's  hands,  and  does  not 
put  them  in  custodia  legis.  Bigelow  v.  Andress,  31  Blinois,  322.  In  South  Carolina, 
on  the  other  hand,  the  Court  of  Appeals  said  :  "  Our  opinion  is,  that  an  actual  seizure 
is  not  essential  to  create  the  attachment  lien,  but  that  the  service  of  the  writ,  on  one  in 
whose  custody  or  control  the  assets  of  the  absent  debtor  may  be,  is  sufficient  to  make 
the  whole  assets  in  his  hands  secure  and  liable  in  law,  to  answer  any  judgment  that 
shall  be  secured  and  awarded  upon  that  process."  Renneker  v.  Davis,  10  Richardson 
Eq.  289.  In  Vermont,  garnishment  was  termed  an  "inchoate  lien."  "Wilder  v. 
Weiitherhead,  32  Vermont,  765. 

[;300] 


CHAP.  XVIII.]  GARNISmiENT.  —  GENERAL   \1EWS.  §  453  a. 

his  rights  remain  unimpaired  by  the  pending  garnishment,  but,  of 
course,  can  be  exercised  only  in  subordination  to  the  lien  thereby 
created.^  From  the  time  of  the  garnishment,  the  effects  in  the 
garnishee's  possession  are  considered  as  in  custodia  ler/is,  and  the 
garnishee  is  bound  to  keep  them  in  safety,  and,  it  was  said  by  the 
Supreme  Court  of  the  United  States,  is  not  at  liberty  to  change 
them,  to  convert  them  into  money,  or  to  exercise  any  act  of  own- 
ership over  them.2  He  acquires  a  special  property  in  them,  as 
agent  of  the  court,^  and  is  entitled  to  hold  them,  until  the  ques- 
tion of  his  liability  is  determined,  as  well  against  the  defendant  as 
against  any  subsequent  purchaser  or  pledgee  ;  *  even  though  the 
attachment  be  against  a  person  other  than  the  ostensible  owner 
from  whom  the  garnishee  received  them.''  They  cannot  lawfully 
be  levied  on  and  taken  out  of  his  possession ;  ^  but  if  that  should 
be  done,  the  officer  seizing  must  hold  them  subject  to  the  lien  of 
the  creditor  who  etfected  the  garnishment  J  If  so  taken  ,^  or  if 
taken  from  him  by  a  wrongdoer,^  it  will  not  discharge  the  gar- 
nishee's liability ;  but  it  may  furnish  ground  for  delaying  proceed- 
ings until  damages  can  be  recovered  of  the  party  taking  them.^® 
**  But  if  the  garnishing  plaintiff  cause  a  levy  and  sale  under  exe- 
cution to  be  made  of  the  property,  he  cannot  afterwards  hold  the 
garnishee  in  respect  thereof.^^ 

§  458  a.  The  position  assumed  by  the  Supreme  Court  of  the 
United  States,  as  stated  in  tlie  next  preceding  section,  that  the 
garnishee  is  bound  to  keep  the  effects  in  liis  hands  safely,  and  is 
not  at  liberty  to  change  them,  to  convert  them  into  money,  or  to 
exercise  any  act  of  ownership  over  them,  must  be  understood  with 
reference  to  the  facts  of  the  case  before  that  court.     There  the 

1  Hicks  r.  Glcason,  20  Vermont,  139. 

2  Brashcar  v.  West,  7  Peters,  608;  Mattingly  v.  Boyd,  20  Howard  Sup.  Ct.  128; 
Bi;:f,'s  »'.  Koiins,  7  Dana,  405.  See  Staniels  v.  Raymond,  4  Gushing,  .314,  whore,  under 
the  Massachusetts  statute,  a  view  is  entertained,  which,  so  far  as  that  State  is  concerned, 
materially  modifies  the  garnishee's  position. 

8  Erskine  i;.  Staley,  12  Leigh,  406. 

*  Walcott  V.  Keith,  2  Foster,  196. 

6  Stiles  V.  Davis,  1  Black,  101.  f 

0  Scholefield  v.  Bradlee,  8  Martin,  495 ;  Erskine  v.  Staley,  12  Leigh,  406. 

'  Burlingame  i'.  Bell,  16  Mass.  .T18;  Swett  v.  Brown,  5  Pick.  178. 

8  Parker  i;.  Kinsman,  8  Mass.  4.36. 

9  Despatch  Line  r.  B.-liamy  Man.  Co.,  12  New  Hamp.  206. 
10  Despatch  Line  v.  Bellamy  Man.  Co.,  12  New  Hamp.  206. 

"  Goddard  v.  Hapgood,  25  Vermont,  351 ;  Clapp  v.  Rogers,  38  New  Hamp.  435. 

[301] 


§  454  a  GARNISHMEST.— GENKRAL   VIEWS.  [cilAI'.  XVm. 

property  in  the  garnishee's  hands  was  merchandise;  concurning 
which  tl>e  position  taken  was  undonhtedly  correct.  But  where 
the  attachment  of  chm-n  in  action  is  authorized  hy  statute,  the  rulo 
is  not  carried  to  the  same  extent.  In  Missouri  this  is  authorized, 
and  a  garnishee  may  there  be  charged  in  respect  of  chosen  in  action 
in  his  hands  belonging  to  the  defendant.  In  a  case  whicli  arose 
there,  a  bank  was  summoned  as  garnishee,  having  in  its  possession, 
for  collection,  a  bill  of  exchange  belonging  to  the  (k'fendant,  up(»n 
which  it  brought  s\iit  against  the  acceptor,  who  set  up  the  garnish- 
ment of  tiie  bank  as  a  bar  to  its  right  to  maintain  an  action  on  the 
bill ;  but  it  was  held,  that  the  bank's  right  of  action  was  not  lost 
by  the  fact  of  the  garnishment.' 

§  454.    Garnishment  cannot  bo  extended  in  its  operation  beyond 
the  mere  matter  of  reaching  the  prop«>rty  or  efTects  of  the  defend- 
ant.     It  has,  and  can  have,  no  elTect,  as  an  attachment  of  tho 
property  of  tiic  garnishee,  as  security  for  tho  payment  of  the  judg- 
ment which  may  1)0  recovered  against  him,  as  garnishee  ;  nor  can 
any  distinct  proceiMliug,  unless  expressly  authorized  by  statute,  be 
based  on  the  garnishment  to  accomplish  that  object.     Therefore, 
where,  in  a  proceeding  in  chancery,  certain  parties  were  garnished, 
and  afterwards  the  complainant  filed  a  sui)plemental  bill,  suggestr 
ing  that  they  were  bankrupt,  and  had  sent  large  quantities  of  their 
goods  to  certain  parties  for  sale  at  auction,  and  that,  if  the  proceeds 
of  the  sale  of  tho  goods  should  l)e  paid  to  the  garnishees,  they  would 
contrive  so  to  dispose  of  them,  that  the  comi)lainant  would  lose 
all  l)enefit  of  the  decree  ;   and  the  court  thereupon  granted  a  re- 
straining order  on  the  auctioneers  ;    and  upon  their  answering, 
showing  the  balance  remaining  in  their  hands,  they  were,  on  the 
final  hearing,  decreed  to  pay  it  to  the  complainant ;  it  was  held, 
that  the  proceeding  was  unauthorized.^     Much  less  is  there  any 
authority  for  a  Court  of  Chancery  to  attach  a  debt  due  to  a  debtor 
of  the  defendant,  and  apply  it  to  the  payment  of  the  defendant's 
debt.3 

§  454  a.    Garnishment  can  have  no  'retroactive  effect,  so  as  to 
aiTect  prior  transactions  between  the  garnishee  and  the  defendant, 

1  Bank  of  the  State  of  Missouri  v.  Bredow,  31  Missouri,  523. 
•;  Wolf  V.  Tappan,  5  Dana,  361.     Sec  Parker  v.  Farr,  2  Browne,  321 
8  Jones  >'.  Huntington,  9  Missoujri,  249. 
[302] 


CHAP.  XVm.]  GARNISHMENT.  —  GENERAL   VIEWS.  §  455 

or  to  subject  the  former  to  liability  on  account  of  property  of  the 
latter  which  was  in  his  hands  previous  to  the  garnishment,  but 
not  at  that  time.  Thus,  where  the  garnishee,  prior  to  the  garnish- 
ment, liad  had  property  of  the  defendant  in  his  possession  under 
a  ."secret  trust,  which  would  have  been  void  as  against  creditors ; 
but  before  he  was  garnished  he  had  delivered  the  property  to  the 
defendant ;  it  was  held,  that  he  could  not  be  charged.^ 

§  454  b.  Garnishment  can  have  no  effect  to  overthrow  trusts, 
in  order  to  reach  moneys  supposed  to  belong  to  a  debtor.  What- 
ever of  money  or  property  of  the  debtor  is  sought  to  be  reached 
by  this  proceeding,  must  be  his  ahsohitdy,  disencumbered  of  any 
trust  declared  in  his  favor,  or  tliat  of  any  other  person.  Thus, 
where  a  testator  bequeathed  to  his  son  a  sum  of  money  ^'■for  the 
support  of  himself  and  family^  and  for  no  other  purpose  "  ;  and  a 
part  of  that  sum  had  been  recovered,  and  paid  to  the  attorney 
of  the  son,  in  whose  hands  it  was  attached ;  the  court  held,  that 
the  money  was  a  trust  fund  under  the  will,  in  which  the  son  had 
no  such  absolute  right  as  to  authorize  its  being  attached  for  his 
debts,  cither  before  or  after  it  came  into  his  hands.  "  The  will," 
said  the  court,  "  should  be  carried  out  according  to  the  intent 
of  the  testator.  And  we  can  have  no  possible  doubt  that  it  was 
his  object  to  create  the  money  in  the  hands  of  his  son  a  trust 
fund,  for  the  use  specified  in  the  will.  The  testator  not  only  used 
affirmative  words,  appropriate  to  create  a  trust  fund,  but  he  saw 
fit  at  the  same  time  to  add  a  negative.  The  words  are, — 'for 
the  support  of  himself  and  family,  and  for  no  other  purpose.*  To 
hold  that  under  this  will  the  son  took  the  money  absolutely  as 
his  own,  and  not  as  a  trust  fund,  would  be  to  pervert  the  use  of 
lan"'ua<'-e,  and  the  obvious  intent  of  the  testator."  ^ 

§  455,  In  garnishment,  as  in  the  case  of  a  levy,  attachments 
take  precedence  in  the  order  of  their  service.  The  right  of 
several  attaching  creditors,  as  between  themselves,  by  virtue  of 
their  successive  processes,  to  reach  the  effect^  of  their  common 

1  Bailer  v.  Ross,  20  New  Ilamp.  .302.  See  Emerson  v.  Wullace,  Ibid.  567.  In  "Whit- 
ticr  f.  Prescott,  48  Maine,  .367,  it  waa  held,  that  one  who  had  received  a  gratuitous  gift 
of  money,  will  not  \>e  chargeable  therefor  as  garnishee  of  the  donor,  although  the  debt 
Bued  for  existed  prior  to  the  gift,  if  the  case  does  not  disclose  that  the  donor  was  insol- 
vent or  largely  indebted. 

a  White  v.  White.  30  Vermont,  338. 

LoOoj 


§  456  GARXISIDIENT.  —  GEXI^RAL   VIEWS.  [CHAP.  XVm 

debtor  in  tlie  hands  of  a  garnishee,  is  a  matter  of  strict  law,  and 
unless  the  creditor  in  the  prior  process  perfects  his  right  as  against 
the  garnishee,  hy  olUaining  final  judgment  that  may  be  enforced 
in  the  manner  i)rovided  by  law,  his  process  will  fail  to  postjwno 
or  defeat  the  subsequent  attachers  in  reaching  such  eflects.  Thus, 
where  a  garnishee,  under  an  arrangement  with  the  first  of  several 
attaching  creditors  and  the  defendant,  paid  his  debt  to  such  credi- 
tor, and  the  latter  did  not  prosecute  his  suit  to  judgment  against 
the  garnishee  and  tlie  defendant,  the  garnishee  was  held  still 
liable  to  a  sul)sequent  attaching  creditor,  who  completed  his 
judgment,  and  whoso  process  was  served  prior  to  such  arrange- 
ment.^ And  so,  if  a  junior  attachment  bo  first  ripened  into  a 
judgment,  that  gives  no  right  to  j)riority  of  recourse  against  tho 
garnishee,  over  a  writ  previously  served.^  And  where  one  has 
Ijcen  subjected  to  garnishment  in  difierent  jurisdictions,  and  makes 
known,  to  the  court  in  which  he  was  last  served,  the  fact  of  tho 
previous  garnishment,  that  court  will  take  such  measures  as  it 
may  deem  expedient,  to  protect  him  from  double  liability,  and  at 
tho  same  time  to  continue  his  responsiljility  to  its  autbority,  in 
tho  event  of  his  release  from  that  of  tho  court  in  which  he  was 
previously  garnished.  In  such  a  case  the  Supreme  Court  of 
Louisiana  considered,  that  there  should  be  a  stay  of  proceedings 
for  a  seasonable  time,  or  that  tho  plaintiiT  should  give  proper 
security  to  the  garnishee,  to  indemnify  him  against  loss  from 
the  previous  attachment.* 

§  450.  After  the  foregoing  general  remarks,  tho  first  inquiry 
naturally  presenting  itself  is  for  general  principles  regulating 
the  liability  of  garnishees.  This  liability  may  result,  as  we  shall 
hereafter  fully  see,  either  from  the  possession  by  the  garnishee, 
when  summoned,  of  personal  property  belonging  to  the  defendant, 
or  from  his  being,  at  that  time,  indebted  to  the  defendant.  It 
will,  therefore,  at  once  be  apparent,  that  many  questions  must 
arise,  as  to  the  nature  and  condition  of  the  property  in  the  gar- 
nishee's hands,  ajjd  the  nature,  extent,  and  qualifying  circum- 
stances of  his  liability  as  a  debtor  of  the  defendant,  necessarily 

1  Wilder  v.  Wcatherhead,  32  Vermont,  765.     Ante,  §  262.  I      P,  n 

2  Erskine  v.  Staley,  12  Lei;,'h,  406  ;  jMoore  v.  Holt,  10  Grattan,  284 ;  Talbot  v.  Hard-  \L  )^ 
injr,  10  Missouri,  350;  Johnson  v.  Griffith,  2  Cranch,  C.  C.  199;  Arledge  v.  White,  1 
Head,  241. 

3  Woodruff  r.  French,  6  Louisiana  Annual,  62. 

[304] 


CHAP.  XVm.]  GARNISHMENT.  —  GENERAL   \TEWS.  §  467 

ality  to  garnish  the  defendant ;  as,  for  instance,  a  toll-gate  keeper 
of  a  turnpike  road,  and  a  ticket  agent  of  a  railroad  ;  and  the 
question  has  arisen,  whether  in  such  cases  the  proceeding  can  be 
maintained.  Upon  principle,  it  seems  that  it  cannot.  They  are 
not  third  persons,  so  far  as  their  relations  to  the  defendant  are 
concerned  ;  but  are,  in  effect,  the  defendant  himself.  Their  pos- 
session of  the  defendant's  money  is  his  possession.  He  can  have 
no  right  of  action  against  them  until  a  demand  made  upon  them 
for  the  money,  and  their  failure  to  pay  it.  They  occupy  the  same 
position*  toward  him  as  a  cashier  does  toward  a  bank,  a  cash  clerk 
toward  a  merchant,  a  treasurer  toward  a  municipal  corporation ; 
simply  custodians  of  the  defendant's  money,  under  his  immediate 
supervision  and  control.  Still,  in  the  case  of  a  toll-gate  keeper,  it 
was  held  in  Alal»ama,  that  he  could  be  charged  as  garnisliee  of 
the  company  for  which  he  collected  tolls.^  The  same  question 
came  up  in  Pennsylvania,  in  the  case  of  a  ticket  agent  of  a  rail- 
road company,  employed  at  the  company's  office  to  sell  tickets  to 
passengers ;  and  the  court  held,  that  he  could  not  be  garnished. 
"  The  purpose  of  an  attachment,"  said  the  court,  "  is  to  reach 
effects  of  a  defendant  in  the  hands  of  third  persons.  Here,  the 
defendant  is  a  corporation,  —  a  railroad  company.  Are  its  ticket 
agents  to  be  treated  as  third  persons,  so  far  as  regards  money  re- 
ceived by  thom  on  the  sale  of  tickets  to  passengers  ?  We  think 
not.  We  suppose  that  the  case  speaks  of  the  ordinary  ticket 
agents  employed  at  the  offices  of  the  company ;  and  of  these  we 
speak.  These  are  the  very  hands  of  the  company  ;  it  cannot  do  its 
business  without  them  ;  and  if  an  attachment  is  to  be  regarded  as 
arresting  money  received  after  its  service,  then  it  would  always 
occasion  the  dismissal  of  such  agents,  in  order  to  prevent  such  a 
result."* 

§  466.  The  further  consideration  of  this  subject  will  naturally 
lead  to  its  arrangement  in  two  general  divisions  :  1.  The  liability 
of  a  garnishee  in  respect  of  property  of  the  defendant  in  his  pos- 
session ;  and,  2.  His  liability  as  a  debtor  of  the  defendant. 

§  467.  On  the  first  point  it  may  be  remarked,  that  it  will  often 
happen  that  a  person  garnished  may  have  personal  property  of  the 

1  Central  Plank-Road  Co.  v.  Sammons,  27  Alabama,  380. 

«  Fowler  v.  Pittsburg,  F.  W.  &  C.  R.  R.  Co.,  33  Pcnn.  State,  22. 

fsisi 


§  467  GAHMSHMENT.  —  GENERAL   VIEWS.  [CUAP.  XVIII. 

defendant  in  his  possession,  mid  yet  not  be  liuble  as  garnishee. 
Various  considerations  determine  the  (iiie^^tion  of  liability,  not 
only  as  to  the  nature  of  the  proj^erty,  but  as  to  the  circumstances 
under  which  it  is  held.  The  property  may  not  be  such  as  is  con- 
templated by  the  rule  above  declared,  or  by  the  particular  statute 
under  which  the  individual  is  i^Mrnished  ;  or  his  possession  of  it 
may  not  l)e  such  as  to  make  him  liable  ;  or  the  capacity  in  which 
he  holds  it  may  exempt  him  from  liability  ;  or  there  may  be  con- 
tracts in  reference  to  it  which  forbid  his  being  charged.  Many 
such  questions  have  arisen,  eliciting  acute  discussion  and  learned 
adjudication.  "NVe  propose,  therefore,  after  first  considering  who 
may  be  subjected  to  garnishment,  to  treat  of  the  liability  of  a  gar- 
nishee, in  respect  of  personal  property  of  the  defendant  in  his 
hands,  under  the  following  heads :  — 

I.  What  personal  property  of  the  defendant  in  the  garnishee's 
possession  will  make  the  garnishee  liable. 

II.  The  character  of  the  possession  of  personal  proi)erty  by  a 
garnishee,  which  will  be  suflficient  to  charge  him. 

III.  The  garnishee's  liability,  as  affected  by  the  capacity  ia 
which  he  holds  the  defendant's  property. 

IV.  The  garnishee's  liability,  as  affected  by  previous  contracts 
touching  the  defendant's  property  in  his  hands. 

V.  The  garnishee's  liability,  as  affected  by  a  previous  assign- 
ment of  the  defendant's  property  in  his  hands,  or  by  its  being 
subject  to  a  lien,  mortgage,  or  pledge. 

[314] 


CHAP.  XIX.]  WHO   MAY   BE   GARNISHED.  §  469 

CHAPTER    XIX. 

WHO   MAY   BE  GARNISHED.  —  CORPORATIONS.  —  NON-RESIDENTS. 

§  468.  As  a  general  proposition,  irrespective  of  the  ulterior 
question  of  liability,  all  persons  are  subject  to  garnishment.  But 
there  luivo  arisen  questions  of  importance  connected  with  the 
character  and  status  of  the  garnishee,  which  it  is  proper  to  con- 
sider, liufore  proceeding  to  tlie  more  extended  field  of  inquiry  in 
regard  to  his  liability.  Those  questions  are  connected,  1.  with 
tlie  garnishment  of  corporations,  and,  2.  with  that  of  persons  re- 
siding out  of  the  State  in  which  the  attachment  is  obtained.  The 
consideration  of  these  points  wil^  form  the  subject  of  the  present 
chapter. 

§  460.  As  to  corporations,  provision  is  usually  made  by  statute 
for  their  garui>hnient.  So  far  as  such  provisions  arc  concerned, 
they  need  not  be  here  discussed.  But  where  such  do  not  exist, 
can  a  corporation  Ije  summoned  as  garnishee,  under  general  en- 
actments, prima  facie  applicable  to  natural  jjcrsons  only?  This 
subject  was  fairly  presented  Ijcfore  the  Supreme  Court  of  Connect- 
icut,^ and  that  of  lowa,^  the  Court  of  Appeals  of  Maryland,'^  and 
that  of  Virginia,*  by  all  of  which  it  was  hebl  — as  doubtless  would 

1  Knox  V.  Protection  Ins.  Co.,  9  Conn.  4.30. 

'-  Walts  r.  Miisvatinc,  4  lowu,  302  ;  Tavlor  i-.  Burlington  &  Mo.  R.  R.  Co.,  5  Ibid.  114. 

»  Bovil  <•.  ClusaiKiike  &  Ohio  Canal  Co.,  17  Maryland,  195. 

♦  Buitiniort'  &  Ohio  R.  R.  Co.  r.  GHlhihne,  12  (irattan,  655.  From  the  opinion  of 
the  court  the  lollowin-  remarks  are  |irc>euted  :  "  The  next  error  assigned  is,  that  the 
court  erred  in  overrulin-  the  motion  to  discharge  the  attachment ;  the  plaintiff"  in  error 
insisting  that  a  curiwration  is  not  liable  as  a  garnishee,  under  the  attachm.nt  laws. 
The  objection  is  general ;  applicable  to  all  coqwrations  aggregate,  without  reference  to 
the  jurisdiction  of  the  court  over  the  parties  or  controversy.  The  Code,  eh.  151,  §  2, 
authorizes  the  plaintiff  in  an  action  at  law,  on  proper  affidavit,  to  obtain  an  attachment. 
The  7th  section  provides  that  e%ery  such  attachment  may  Ijc  levied  on  any  estate,  real 
or  pcr.-onal,  of  the  defendant ;  and  that  it  shall  be  sufficiently  levied  by  the  service  of  a 
copv  thereof  on  such  jicrsons  as  may  be  in  possession  of  effects  of,  or  known  to  Iw 
indebted  to,  the  defendant.  By  the  9th  section,  such  persons  are  to  be  summoned  to 
apjK-ar  as  garnishees.  The  12th  section  gives  a  lien  from  the  time  of  service,  upon  the 
personal  iM-oiK-rty,  ehoses  in  action,  and  other  securities  of  the  defendant,  in  the  hands 
of,  or  due  from,  any  such  garnishee.  The  17th  section  provides  that  when  any  garni- 
shee apiK^ars  he  shall  be  examined  on  oath.  If  it  appear  on  such  examination,  that 
be  was  indebted,  the  court  mav  order  him  to  pay  the  amount  so  due  by  him  ;  or  with 

[315J 


§  470  WHO   MAY  BE   GARNISHED.  [CHAP.  XIX. 

be  held  elsewhere  —  that,  though  not  mentioned  in  the  statute  aa 
the  subject  of  garnishment,  a  corporation  is  liable  thereto,  in  the 
same  manner  as  a  natural  person. 

§  470.  Whatever  may  be  the  statutory  mode  of  serving  an  at- 
tacliment  on  a  corporation  as  a  garnishee,  a  service  in  a  mode 
authorized  and  requested  by  the  president  and  directors  of  the 
corporation  will  be  binding  on  it.  It  was  so  held,  where  those 
officers  requested  that  notices  of  garnishment  sliould  be  delivered 
to  one  of  the  clerks  of  the  corporation.^    But  care  should  be  taken 

the  leave  of  the  court  he  may  pivc  bond  to  pay  the  amount  due  by  hira  at  such  time 
and  place  as  the  court  may  thereafter  direct.  The  18th  section  authorizes  the  court,  if 
he  fails  to  appear,  to  compel  him  to  appear,  or  tlie  court  may  hear  proof  of  any  debt 
due  by  him  to  the  dt  (Vudaut,  an<l  make  the  proj)er  order  thereupon.  And  tlie  19th 
section  authorizes  a  jury  to  be  impanelled  wlien  it  is  supgestcd  that  the  garnishee  has 
not  fully  disclosed  the  debts  due  by  him  to,  or  effects  in  his  hands  of,  the  defendant; 
and  provides  for  a  judgment  on  the  finding  of  the  jury. 

"From  this  review  of  the  material  provisions  of  the  statute  l)earinf::  upon  this  ques- 
tion, there  would  seem  to  bo  nothing  in  the  condition  of  a  corporation  to  exempt  it 
from  being  summoned  as  a  garnishee.  When  the  word  person  is  used  in  a  statute, 
corjjorations  as 'well  as  natural  persons  are  included  for  civil  puri)oses.  This  was  the 
rule  at  common  law.  They  arc  to  be  deemed  and  taken  as  ])ersons,  when  the  circum- 
stances in  which  they  are  placed  arc  identical  with  those  of  natural  persons  expressly 
included  in  such  statutes.  And  the  Code  provides  tliat  the  word  person  may  extend 
and  be  applied  to  bodies  politic  and  corporate  as  well  as  individuals.  The  general 
words  as  to  what  effects,  debts,  or  estate  of  the  defendant  may  be  attached,  would  seem 
to  embrace  his  whole  estate,  without  respect  to  tlic  character  of  the  person,  natural  or 
artificial,  in  whose  hands  the  effects  were,  or  by  whom  the  debt  was  due.  The  corpo- 
ration stands  in  precisely  the  same  position  in  regard  to  such  effects  or  debts,  as  a  nat- 
ural person.  If  it  owes  the  debt  or  holds  the  effects  of  another,  it,  like  an  individual, 
is  liable  to  be  sued  by  its  creditor  or  the  owner  of  the  property :  and  the  statute  merely 
substitutes  the  plaintiff  in  the  attachment  to  the  rights  of  the  creditor  or  owner  as 
against  the  garnishee.  No  change  is  made  in  its  contract,  or  additional  obligation 
imposed  on  it,  by  being  proceeded  against  as  garnishee.  The  only  particular  in  which 
there  is  any  departure  from  a  literal  compliance  with  the  statute,  is  in  regard  to  that 
provision  of  the  17th  section  which  declares  that  when  any  garnishee  shall  appear,  he 
shall  be  examined  on  oath.  This  clause  was  for  the  benefit  of  the  plaintiff  in  the  at- 
tachment. In  the  case  of  a  corporation,  he  must  receive  an  answer  in  the  only  mode 
in  which  the  corporation  can  answer,  under  its  corporate  seal.  In  chancery,  where,  as 
a  general  rule,  all  answers  must  be  verified  by  oath  or  aflSrmation,  a  corporation  must 
answer  in  the  same  way,  though  where  a  discovery  is  wanted,  a  practice  has  prevailed 
of  making  some  of  the  oflScers  defendants.  The  same  result  could  be  arrived  at  under 
the  attachment  law,  by  examining  the  officers  as  witnesses,  if  the  plaintiff  suggests  that 
a  full  disclosure  has  not  been  made.  This  is  an  inconvenience  to  which  he  is  subjected, 
growing  out  of  the  character  of  the  garnishee,  but  furnishes  no  reason  for  exempting 
the  corporation  from  being  so  proceeded  against,  when  all  the  other  words  of  the  statute 
are  sufficiently  comprehensive  to  embrace  artificial  as  well  as  natural  persons.  The 
mischief  intended  to  be  remedied  applies  as  well  to  debts  due  by  them  as  by  individuals; 
and  the  circumstances  in  which  they  are  placed  are  the  same  as  those  of  others  embraced 
in  the  statute.  A  fair  construction  of  the  statute  authorizes  the  proceeding  against  the 
corporation  in  a  proper  case." 

1  Davidson  v.  Donovan,  4  Cranch,  C.  C.  578. 
[316] 


CHAP.  XIX.]  WHO  MAY   BE   GARNISHED.  §  472 

that  there  be  in  reality  a  service  on  the  corporation.  The  notice 
of  garnishment  may  be  served  on  its  officers,  but  not  be  a  service 
on  it.  Thus,  where  such  notice  was  served  on  the  Mayor,  Re- 
corder, and  Treasurer  of  a  city,  informing  them  and  each  of  tliem 
that  they  "  were  attached  and  held  as  garnishees  of  the  defendant, 
and  as  persons  holding  property  of  said  defendant "  ;  it  was  de- 
cided to  be  no  service  on  the  corporation.^  Whether,  however, 
the  service  on  the  corporation  be  in  conformity  ^vitll  the  stat- 
ute or  not,  the  appearance  of  the  corporation,  and  submitting 
to  tlic  jurisdiction  of  the  court,  and  answering,  obviates  the  de- 
fect.2 

§  471.  The  rules  governing  the  liability  of  a  corporation  as  a 
garnishee,  do  not  differ  from  those  applicable  to  the  case  of  au 
individual.  The  corporation  must  either  have  personal  property 
of  tlie  defendant  in  its  possession,  capable  of  being  seized  and  sold 
under  execution,  or  bo  indebted  to  him.  Neither  of  these  condi- 
tions is  fulfilled  by  the  mere  fact  of  the  defendant  being  a  stock- 
holder ill  the  corporation  ;  and  the  corporation  cannot  be  charged 
as  his  garnishee  on  that  account.^ 

§  472.  Different  views  are  entertained  as  to  the  manner  in  which 
a  corporation  shall  answer  as  garnishee.  In  Virginia  and  South 
Carolina,  it  must  answer  through  its  chief  officer  and  under  its 
common  seal.*  In  Alabama,  the  same  ride  exists,  with  the  further 
requirement,  that,  if  the  seal  be  used  by  another  than  the  chief 
officer,  it  should  appear  to  have  been  by  the  express  authority  of 
the  directors.  It  was  therefore  held,  that  an  answer  of  a  corpora- 
tion put  in  by  its  cashier,  or  the  individual  answer  under  oath  of 
either  a  president  or  cashier,  is  not  sufficient.^ 

In  Illinois,  on  the  contrary,  where  the  statute  required  an  an- 
swer to  be  sworn  to  in  all  cases,  it  was  held,  that  an  answer  of  a 
corporation,  signed  by  its  secretary  and  under  its  corporate  seal, 
was  not  sufficient ;   and  as  the  corporation  could  not  swear,  the 

1  Claflin  V.  Iowa  City,  12  Iowa,  284. 

2.  Harris  v.  Somerset  &  Kennebec  li.  R.  Co.,  47  Maine,  298. 

'  Planters  &  Merchants'  Bank  i;.  Leavens,  4  Alabama,  753 ;  Ross  v.  Ross,  25  Grcor- 
gia,  297. 

*  Callahan  v.  Hallowell,  2  Bay,  8 ;  Baltimore  &  0.  R.  R.  Co.  v.  Gallahue,  12  Grat- 
tun,  655. 

5  Branch  Bank  v.  Poe,  1  Alabama,  396 ;  Planters  &  Merchants'  Bank  v.  Learens,  4 
Ibid   T.5.3 

[317] 


§  -1T4  WnO   MAY   RE   GARNISHED.  [cHAP.  XIX. 

oath  of  a  proper  officer  or  an  agent  of  the  company  would  be  a 
substantial  compliance  with  the  statute.^ 

In  Maine,  the  answer  can  only  be  made  by  an  agent  or  attorney 
of  the  corporation.  It  need  not  be  a  general  agent,  but  one 
specially  authorized  may  act  in  that  capacity,  whether  he  bo  a 
member  of  the  cor])oration  or  not.  ^ 

§  478.  Concerning  the  residence  of  a  person,  as  affecting  his 
liability  to  garnishment,  it  is  well  settled,  that  under  the  custom 
of  London  one  cannot  be  charged  as  garnishee,  unless  he  reside 
within  the  jurisdiction  of  the  Lord  Mayor's  court.^ 

§  474.  In  tliis  country,  the  question  has  been  repeatedly  pre- 
sented, and  tlie  uniform  tenor  of  tlie  adjudications  establishes  the 
doctrine,  that  whether  the  defendant  reside  or  not  in  the  State  in 
whicli  the  attachment  is  obtained,  a  non-resident  cannot  be  sub- 
jected to  garnishment  there,  unless,  when  garnished,  he  have  in 
that  State  i)roperty  of  the  defendant  in  liis  hands,  or  be  bound  to 
pay  the  defendant  money,  or  to  deliver  to  him  goods,  at  some  par- 
ticular place  in  that  State. 

As  in  many  other  questions  in  the  law  of  attachment,  Massa- 
chusetts was  the  first  to  pass  ujion  this  point,  in  a  case  where  both 
defendant  and  garnishee  were  non-residents.  The  Supreme  Court 
there  said :  "  The  summoning  of  a  trustee  is  like  a  process  in  rem. 
A  chose  in  action  is  tliereby  arrested  and  made  to  answer  the  debt 
of  the  principal.  The  person  entitled  by  the  contract  of  the  sup- 
posed trustee  is  thus  summoned  by  the  arrest  of  this  species  of 
effects.  These  are,  however,  to  be  considered  for  this  purpose  as 
local,  and  as  remaining  at  the  residence  of  the  debtor  or  person 
intrusted  for  the  principal,  and  his  rights  in  this  respect  are  not  to 
be  considered  as  following  the  debtor  to  any  place  where  he  may 
be  transiently  found,  to  be  there  taken  at  the  will  of  a  third  per- 
son, within  a  jurii^diction  where  neither  tlie  original  creditor  nor 
debtor  resides."* 

When  the  point  arose  again,  the  defendant  was  a  resident,  and 

1  Oliver  v.  C.  &  A.  R.  R.  Co.,  17  Illinois,  587. 

-  Head  V.  Merrill,  34  Maine,  586. 

3  1  Saunders's  R.  67,  Note  a.;  Tamm  v.  Williams,  2  Chitty's  R.  438;  s.  c.  3  Doug- 
lass, 281  ;  Crosby  v.  Hetherinjjton,  4  Manninj;  &  Granger,  9c3 ;  Day  v.  Paupierre,  7 
Dowling  &  Lowndes,  12 ;  s.  c.  13  Adolphus  &  Ellis,  n.  s.  802. 

*  Tingley  v.  Bateman,  10  Mass.  343;  Nye  v.  Liscomb,  21  Pick.  263. 
[318] 


CHAP.  XIX. ]  WHO   MAY   BE   GARNISHED.  §  474 

the  garnishee  a  non-resident,  and  the  court  maintained  its  previous 
position.^  The  same  ground  has  been  taken  in  Maine,  New  Hamp- 
shire, Vermont,  Connecticut,  and  New  York,  and  by  the  United 
States  Circuit  Court  for  the  District  of  Columbia.^ 

1  Ray  V.  Underwood,  3  Pick.  302  ;  Hart  v.  Anthony,  15  Ibid.  445. 

2  Lovejov  >:  Alliee,  33  Maine,  414  ;  Jones  v.  Winchester,  6  New  Hamp.  497  ;  Sawyer 
V.  Thompson,  4  Foster,  510;  Baxter  v.  Vincent,  6  Vermont,  614;  Green  v.  Farmers 
&  Citizens'  Bank,  25  Conn.  452 ;  Bates  v.  New  Orleans,  &c.  U.  U.  Co.,  4  Abbott  Fract. 
R.  72  ;  Willet  v.  Equitable  Ins.  Co.,  10  Ibid.  193  ;  Miller  r.  Hooe,  2  Cranch,  C.  C.  622. 
hi  Sawyer  r.  Thompson,  the  frrounds  taken  ]>y  the  Superior  Court  of  New  Hampshire 
were  as" follows  :  "  The  present  is  an  attempt  to  chartrc  the  trustee  for  a  chose  in  action, 
which  is  in  the  law  ref^arded  a:*  local  in  reference  to  this  action.  The  indebtedness  at- 
tempted to  be  reached  is  Wtween  jjarties  resident  in  other  jurisdictions,  who  have  never 
been  domiciled  within  this  State,  payable,  and  to  be  discharfred  in  the  foreijrn  jurisdic- 
tion. But  it  is  well  settled  that  a  chose  in  action  is  not  reached  by  the  trustee  process, 
undor  circumstances  like  the  present.  It  is  re?:arded  ivs  havinj,'  a  situs  and  locality 
win  -.v  the  party  resides.  The  payment  cannot  be  enforced  within  this  jurisdiction,  by 
this  process,  of  a  debt  due  from  a  debtor  resLlinj;  in  another  State,  and  payaiile  in  that 
jurisdiction.  A  chose  in  action,  in  reference  to  the  forei;j;n  process,  stands  precisely 
ujwn  the  same  ground  as  chattels  of  the  principal  debtor,  fouml  in  the  possession  of 
tliC  trustee,  located  and  deliverable  to  him  in  another  State.  The  trustee  is  no  more 
answerable  for  the  chose  in  action,  payable  in  the  Hjrei;,'n  jurisdiction,  than  for  the 
goods  that  are  located  there.  No  lien  is  created  by  the  service  of  the  process  upon  either. 
Both  classes  (jf  projR-rty  are  equally  local.  To  compel  a  performance  of  the  contract 
in  reference  to  cither  cla.ss  of  property,  in  a  jurisdiction  dirtlrent  from  that  of  the  stip- 
ulated performance,  would  be  to  allJw  a  creditor  of  the  principal  debtor  to  enforce  a 
contract  in  a  manner  ditlerent  from  its  leyal  cfTect  and  from  the  a;:reement  of  the 
parties." 

In  Vermont,  in  Baxter  v.  Vincent,  tU  supra,  the  matter  arose  m  such  a  shape  as  to 
involve  the  construction  of  three  statutes,  passed  in  1797,  1817,  and  18.30,  the  last  two 
of  which  secmeil  to  re(iuire  the  };arni>hee  to  be  a  resilient  of  the  State,  while  the  first 
did  not.  The  following,'  i).>rtions  of  the  opinion  of  the  court  discuss  other  points  than 
those  embraced  in  the  cases  cited  from  Miussachusetts  and  New  Hampshire.  The  court 
say :  "  It  should  be  borne  in  mind,  that  the  j.roceedin-  a-ainst  the  trustee  is  not  an 
ori-inal  or  distinct  action.  The  direct  suit  is  between  the  creditor  and  principal  debtor, 
and  this  is  but  a  species  of  attachment,  incidental  to  that  suit,  and  dependent  upon  it. 
And  hence  the  -.'eneral  rule,  that  any  person  coming  into  this  State  is  allowed  to  insti- 
tute, or  may  be  holden  to  ilefend,  a  transitory  per>onal  action,  is  not  conclusive  of  the 
question.  The  object  of  these  statutes  is  to  furnish  a  remedy  against  the  funds  and 
cftects  of  the  debtor,  when,  in  consequence  of  his  having  concealed  himself,  or  being 

'  bevond  the  reach  of  ordinary  process,  the  usual  remedies  cannot  be  enforced  against 
him  personally.  And  the  course  pointed  out,  to  bind  the  effects  for  the  benefit  of  the 
creditor,  has  been  considered  as  somewhat  analogous  to  proceedings  in  rem,  while  in 

*  the  mode  of  trial  it  has  W-en  likened  to  a  hearing  in  chancery.  A  judgm.-nt  in  relation 
to  the  effects,  whether  it  be  for  or  against  the  trustee,  is  not  understood  to  have  the 
effect  of  an  adjudication  as  between  him  and  the  principal  debtor.  If  the  trustee  is 
miule  liable  as  such,  he  is  protected  against  the  princiijal  debtor,  only  to  the  amount  for 
which  he  is  so  charged  in  favor  of  the  creditor ; —or,  in  other  words,  a  payment  to  the 
creditor  in  obedience  to  this  process  is  legalized,  pro  lanto,  as  if  made  to  the  principal 
debtor. 

'•The  statutes  evidently  presuppose  such  a  jurisdiction  over  the  trustee,  that,  ordi- 
narilv,  their  provisions  m'ly  be  carried  into  full  execution  against  him,  by  the  means 
which  they  have  provided".  But  these  means  mAst  prove  very  inadequate  to  their 
ohiect.  when  neither  the  trustee  nor  the  effects  can  be  reached,  by  the  first  execution, 

[319] 


§  476  WHO   MAY   BE   GARNISHED.  [CHAI'.  XIX. 

§  475.  This  doctrine,  however,  as  previously  intimated,  docs  not 
apply,  where  the  garnishee  has  in  his  hands,  in  the  State  in  which 
he  is  summoned,  property  of  the  defendant,  or  has  contracted  to 
pay  money  or  deliver  goods  to  the  defendant  at  some  particular 
place  in  that  State.  In  regard  to  this  condition  of  things,  the 
Superior  Court  of  New  Hampshire  say :  "  The  property  was  at- 
tached in  the  trustee's  hands,  while  in  his  possession,  in  this  State. 
If  he  had  not  the  property  with  him,  hut  had  left  it  at  his  residence, 
it  could  not  be  said  that  it  was  attached  here ;  but  having  it  with 
him,  we  see  no  reason  why  it  might  not  bo  attached  in  this  way, 
as  well  as  if  it  had  been  visible  personal  property  of  the  defend- 
ant's, and  taken  by  the  ofiicer.  If  the  trustee  had  brought  into 
this  State  the  goods  and  chattels  of  the  defendant,  and  had  him- 
self no  special  property  in  them  which  might  give  him  the  power 
to  remove  them  from  the  State,  they  could,  no  doubt,  have  been 
attached  and  held  on  a  writ  against  the  defendant ;  and  it  appears 
to  us  that  no  well-founded  distinction  can  be  pointed  out  betweea 
such  a  case  and  one  where  the  trustee  has  about  his  person,  at  the 
time  the  writ  is  served  upon  him,  the  money  and  notes  of  the  de- 
fendant." 1 

§  476.  The  exemption  ft'om  garnishment  on  account  of  non- 
residence  is  not  to  be  pushed  beyond  the  reason  of  the  rule, 
which  rests  upon  the  idea  that  the  property  or  debt  sought  to  be 
reached  is  without  the  jurisdiction  of  the  court,  and,  for  that 
reason,  incapable  of  being  su))jected  to  its  process.  Therefore,  if 
several  joint  debtors  be  garnished,  part  of  whom  are  residents 
and  part  non-residents,  the  jurisdiction  will  extend  to  all,  in 
virtue  of  the  residence  of  those  within  the  State.  This  was  de- 
cided in  Vermont,  under  a  statute  which  provided  "  that  no  per- 
son shall  be  summoned  as  trustee,  unless,  at  the  time  of  the  service 

of  the  writ  he  resides  in  this  State."     Four  persons,  members  of 

• 

nor  the  trustee  sei"vcd  with  the  necessary  process,  preparatory  to  the  second  and  con- 
clusive judf^raent  against  him.  And  although  this  consideration  might  have  less 
weight  in  those  cases  where  execution  is  authorized  directly  against  the  trustee  in  the 
first  instance,  yet,  as  such  a  case  is  not  to  be  anticipated,  but  depends  upon  the  nature 
of  his  accountability  to  the  prmcipal  debtor,  which  can  only  appear  by  the  disclosure 
or  other  evidence  on  trial,  the  distinction  furnishes  no  aid  upon  a  preliminary  question 
of  jurisdiction.  If,  therefore,  the  question  rested  solely  upon  the  statute  of  1797,  we 
should  incline  to  decide,  that  none  but  persons  resident  in  this  State  could  properly  be 
holden  as  trustees." 

1  Young  V.  Ross,  11  Foster,  201. 
[320] 


CHAP.  XVIII.]  GARNISHMENT.  —  GENERAL  VIEWS.  §  458 

involving  the  determination  of  many  legal  principles.  These 
questions  will  be  considered  in  their  appropriate  order :  at  present 
it  is  important  to  lay  the  groundwork  of  general  principles. 

§  457.  It  is  necessary,  in  the  first  place,  to  bear  in  mind,  that, 
wherever  the  distinction  exists  between  common  law  and  chancery 
jurisdiction,  courts  of  law  cannot  undertake,  by  garnishment,  to 
settle  equities  between  the  parties,  in  order  to  subject  an  equitable 
demand,  which  the  defendant  may  have  against  the  garnishee,  to 
the  payment  of  the  defendant's  debt.  Where  this  distinction  does 
not  exist,  and  both  branches  of  jurisdiction  are,  as  it  were,  fused 
into  one,  or  where,  as  in  some  States,  courts  of  chancery  are 
vested  with  jurisdiction  in  attachment  cases,  the  rule  may  be 
different.  In  courts  of  law,  however,  garnishment  must  be  con- 
sidered as  a  legal  and  not  an  equitable  proceeding,  and  conse- 
quently the  defendant's  rights  to  the  fund  or  property  sought 
to  be  condemned  must  l)e  legal,  as  contradistinguished  from 
equitable.  If  this  rule  be  departed  from,  there  will  be  no  stopping 
j>oiut,  and  we  must  go  the  full  length,  and  claim  that  the  equitable 
rights  of  the  defendant  may  be  attached  by  garnishment  in  a  suit 
at  law,  and  thus  a  court  of  law  will  l)ccome  invested  with  cog- 
nizance of  equitable  rights,  and  therefore  bound  to  ascertain  and 
condemn  them,  however  diflicult  the  task  may  be,  or  however 
incompetent  the  powers  of  the  court  for  this  purpose.^ 

Thus,  where  a  garnishee  was  sought  to  be  charged  on  the 
ground  that  ho  was  indebted  to  the  defendant  in  respect  of  a 
partnership  which  had  existed  between  them,  but  the  accounts 
of  which  had  not  been  settled,  it  was  held,  that  the  proceeding 
could  not  be  sustained  ;  that  the  partnership  accounts  could  not 
be  settled  in  that  way,  but  only  in  equity.'^ 

§  458.  A  fundamental  doctrine  of  garnishment  is,  that  the 
plaintiff  does  not  acquire  any  greater  rights  against  the  garnishee 
than  the  defendant  himself  possesses.     When,  therefore,  the  at- 

1  Harrcll  r.  Whitman,  19  Alabnma,  135;  Thomas  v.  Hopper,  5  Ibid.  442;  Hoyt  v. 
Swift,  13  Vermont,  129  ;  May  c.  Baker,  15  Illinois,  89;^  Perry  v.  Thornton,  7  Rhode 
Island,  15;  Clarke  i*.  Farnum,  Ibid.  174. 

■i  Bnmham  r.  Hopkin.son,  17  New  Hamp.  259;  Treadwell  v.  Brown,  41  Ibid.  12. 
Nor  can  the  garnishment  of  one  partner  in  an  action  against  his  copartner,  authorize 
the  attaching  plaintitt'  to  maintain  a  bill  in  equity  against  the  latter  for  an  account, 
so  as  to  reach  the  debtor's  interest  in  the  partnership.     Treadwell  v.  Brown,  43  New 

"•"""■^•■'»-  ^  [8051 


/^  lAt^ 


I  4G1  GARNISMMKNT.  —  GENERAL   VIEWS.  [rilAIV  XVIII 

tachinc/)t  plaintiff  seeks  to  avail  liiinsclf  of  the  rights  of  tlic  defeud- 
aiit  against  the  garnishee,  his  recourse  against  the  hitter  must  of 
necessity  he  limited  l)y  the  extent  of  the  garnishee's  liahility  to 
the  defendant.  This  principle  is  suhjcct,  however,  to  an  exception, 
where  the  garnishee  is  in  possession  of  effects  of  the  defendant 
under  a  fraudulent  transfer  from  the  latter.  There,  though  the 
defendant  would  have  no  claim  against  the  garnishee,  yet  a  credi- 
tor of  the  defendant  can  suhject  the  effects  iu  the  garnishee's 
hands  to  his  attachment.^ 

§  4:)0.  The  plaintiffs  right  to  hold  a  garnishee,  exists  only  so 
long  as,  in  the  suit  in  which  the  garnishment  takes  place,  he  has 
a  right  to  enforce  his  claim  against  the  defendant.  When  his 
remedy  against  the  latter  is  at  an  end,  so  is  his  recourse  against 
the  garnishee.  That  the  latter  may  show  that  the  plaintiff's  right 
against  him  has  heen  thus  toruiinated,  cannot  he  doul>t<Ml.  Thus, 
where  one  was  garnished  under  an  execution,  he  was  permitted 
to  show  hy  a  previous  execution  in  the  same  case  that  the  dc- 
feiKlant  had  satisfied  the  jtidgment.'* 

§  4G0.  As  the  whole  object  of  garnishment  is  to  reach  effects 
or  credits  in  the  garnish.'e's  hands,  so  as  to  suhject  them  to  the 
payment  of  such  judgment  as  the  i)laintiff  may  recover  against 
the  defendant,  it  results  necessarily  that  there  can  be  no  judgment 
against  the  garnishee,  until  judgment  against  the  defendant  shall 
have  been  recovered.' 

§  461.  In  order  to  a  recovery  against  a  garnishee,  it  must  be 
shoicn  affirmatively,  either  by  his  answer  or  by  evidence  aliunde, 
that  he"  has  property  of  the  defendant  in  his  possession,  of  a 
description  which  will  authorize  his  being  charged,  or  that  he  is 

1  Lamb  v.  Stone,  11  Pick.  527.  This  was  au  action  on  the  case  by  a  creditor  against 
a  person  to  wliom  it  was  alleged  the  debtor  had  made  a  fraudideut  sale  of  his  property. 
The  court  held,  that  the  action  could  not  be  maintained,  because,  1.  If  the  sale  was 
fraudulent,  the  property  was  liable  to  attachment,  after,  as  well  as  before,  the  sale ;  and 
2.  If  the  property  could  not  be  come  at  to  be  attached  specifically,  it  ini,-ht  be  reached 
in  the  purchaser's  hands  by  garnishment.     See  United  States  v.  Vaughan,  3  Binney, 

394. 

2  Thompson  ".  Wallace,  3  Alabama,  132 ;  Price  r.  Higgins,  1  Littell,  274. 

8  Gaines  v.  Beirne,  3  Alabama,  114 ;  Leigh  r.  Smith,  5  Ibid.  583  ;  Lowry  v.  Gem- 
ents,  9  Ibid.  422;  Bostwick  v.  Beach,  18  Ibid.  80;  Case  v.  Moore,  21  Ibid.  758;  Cald- 
well r.  Townsend,  5  Martin,  n.  s.  .307  ;  Proseus  r.  Mason,  12  Louisiana,  16;  House- 
mans  V.  Heilbron,  23  Georgia,  186;  Rose  v.  Whaley,  14  Louisiana  Annual,  374. 
[306] 


CHAP.  X^^TI.]  GARNISmiENT.  —  GENERAL  \aEWS.  §  462  a 

indebted  to  the  defendant.  The  law  will  not-  presume  him  lial)le, 
nor  will  he  be  required  to  show  facts  entitling  him  to  be  dis- 
charged, until  at  least  a  prima  facie  case  is  made  out  against 
him.  On  the  contrary,  the  rule  is  the  other  way,  tliat  he  will  be 
entitled  to  be  discharged,  unless^  enough  appear  to  render  him 
liable.  In  this  respect  he  stands  precisely  in  the  position  he 
would  occupy  if  the  defendant  had  sued  him.  A  dictum  of 
Parsons,  C.  J.,  in  1807,  very  proper  as  applied  to  the  case  before 
liim,  but  wholly  crroueous  as  a  general  principle,  —  that  "  the 
trustees  must  be  holdcn,  unless  sufficient  matter  appears  in  their 
answers  to  discharge  them,"  ^  created  and  kept  alive  in  Massa- 
chusetts, for  many  years,  a  misconception  of  the  true  position 
of  a  garnishee,  and  of  the  principles  upon  which  he  should  be 
held  liable.  Recently,  however,  the  Supreme  Court  of  that  State, 
in  an  elaborate  opinion,  traced  the  rise  and  progress  of  that  mis- 
conception, and  finally  settled  the  rule  that  the  garnishee's  liability 
should  be  affirmatively  shown.^ 

§  402.  It  is  an  invariable  rule,  that  under  no  circumstances 
shall  a  garnishee,  l)y  tlie  operation  of  the  proceedings  against 
him,  be  placed  in  any  worse  condition  than  he  would  be  in,  if  the 
defendant's  claim  against  him  were  enforced  by  the  defendant 
liimself.  This  is  necessary,  in  order  to  protect  the  garnishee's 
rights,  as  between  him  and  tlie  defendant,  and  to  enable  the 
garnishee  to  defend  against  a  suit  which  the  defendant  might 
bring  against  him  on  the  same  liability  fur  which  he  may  have 
been  hold  as  garnisliee. 

§  4G2  a.  In  some  States,  statutory  authority  is  given,  for  the 
garnishment  of  one  who  is  bound  by  contract  to  deliver  goods  or 
chattels  to  the  defendant;  and  for  the  delivery  thereof  to  the  officer 
holding  the  execution  in  the  case,  in  discharge  of  the  garnishee's 
liability.  In  such  case  the  garnishee  cannot  be  cliarged,  if  his 
contract  was  to  deliver  the  goods  in  another  State  ;  for  the  officer 
holding  the  execution  has  no  authority  to  go  there  for  them,  or  to 
receive  them  there.^ 

1  Webster  v.  Gage,  2  Mass.  503. 

2  Porter  t;.  Stevens,  9  Cushing,  5.30.  See  Lomcrson  i'.  Iluftman,  1  Dutcher,  625; 
Williams  v.  Housel,  2  Iowa,  154;  Hunt  v.  Coon,  9  lailianii,  5.37;  Reagan  v.  Pacific 
Railroad,  21  Mi.ssouri,  .30;  Lane  v.  Felt,  7  Gray,  491  ;  Driscoll  p.  Hoyt,  11  Ibid.  404. 

*  Clark  1-.  Brewer,  6  Grav,  320. 

[3071 


§  4G3  GARNISHMENT.  —  GENERAL   VIEWS.  [CHAIV  XVIIL 

§  4G3.  As  to  tlio  general  basis  of  a  garnishee's  liability,  it  will 
be  found,  on  examination,  that  wliatever  elho  may,  under  par- 
ticular statutes,  authorize  his  being  charged,  there  are  two  com- 
prehensive grounds,  common  to  every  attachment  system,  viz. 
1.  His  possession,  when  garnished,  of  personal  property  of  the 
defendant,  capable  of  being  seized  and  sold  on  execution  ;  and,  2. 
Ilis  liability,  ex  cuntnidu,  to  the  defendant,  wherel>y  the  latter 
has,  at  the  time  of  the  garnishment,  a  cause  of  action,  present  or 
future,  against  him.  With  such  exceptions  and  modifications  as 
are  hereinafter  presented,  tliese  are  the  fundamental  grounds  of 
a  garnishee's  liability,  in  all  the  garnishment  systems  of  England 
and  the  United  States. 

The  terms  of  the  dilTerent  State  laws  prescribing  the  garnishee's 
liability  are  set  forth  in  the  Appendix  ;  wliere  it  appears  that 
iu  some  States  he  may  be  charged  in  respect  of  real  estate  of  the 
defendant  in  his  hands  ;  and  in  some,  on  account  of  cJioses  in  ac- 
tion ;  but  aside  from  sucli  special  provi>ions,  the  language  used  iu 
defuiing  his  liability,  though  varied,  and  often  cumulative,  will, 
on  examination,  be  found  to  resolve  itself,  in  each  case,  into 
those  two  general  grounds  ;  which  may  be  considered  as  fully 
embraced  in  any  system  whicii  provides  no  more  than  that  one 
having  "  goods,  effects,  or  credits  "  of  the  defendant  in  his  posses- 
sion may  be  charged  as  his  garnishee.  The  addition  of  the  word 
"  money,"  or  '*  chattels,"  or  "  property,"  or  "  rights,"  which  is 
frequently  found,  or  that  of  all  of  them,  is  not  conceived  to  en- 
large, in  legal  construction,  the  basis  afforded  by  the  compre- 
hensive terms,  "  goods,  elTects,  or  credits."  Hence  the  general 
applicability  of  the  decisions  iu  Massachusetts  and  Maine,  where, 
under  statutes  using  those  words,  it  has  been  uniformly  held, 
that,  to  charge  a  garnishee,  the  defendant  must  either  have  a  cause 
of  action  against  him,  or  the  garnishee  must  have  hi  his  possession 
personal  property  belonging  to  the  defendant,  capable  of  being 
seized  and  sold  on  execution.^  And  the  same  rule  prevails  iu 
New  Hampshire  and  Vermont,  where  ''  any  person  having  in  his 
possession  money,  goods,  chattels,  rights,  or  credits  "  of  the  de- 
fendant, may  be  charged  as  garnishee.^    And  where  this  posses- 

>  Maine  F.  &  M.  Ins.  Co.  r.  Weeks,  7  Mass.  438;  "White  v.  Jenkins,  16  Ibid.  62; 
Brigdcn  v.  Gill,  Ibid.  522 ;  Rundiet  v.  Jordan,  3  Maine,  47. 

2  Haven  v.  Wcntworth,  2  New  Hamp.  93 ;  Adams  v.  Barrett,  Ibid.  374 ;  Piper  v. 
Piper,  Ibid.  4.39  ;  Greenleaf  r.  Perrin,  8  Ibid.  273  ;  Paul  v.  Paul,  10  Ibid.  117;  Getchell 
[308] 


CHAP.  XVni.]  GARNTSmiENT.  —  GENERAL   VIEWS.  §  464 

sion  exists,  the  possessor  cannot  escape  the  operation  of  the 
garnishment  on  the  ground  that  the  property  for  which  it  is 
sought  to  charge  him  might  have  been  attached  by  levy.^ 

§  464.  The  rule,  as  just  stated,  is  qualified,  in  the  case  before 
referred  to,  of  the  garnishee's  possession  of  effects  of  the  defend- 
ant  under  a  fraudulent  transfer,^  and  is  also  subject  to  excep- 
tions. For  instance,  wliere  the  garnishee  has  in  his  possession 
proj)crty  which,  whon  ho  is  summoned,  could  not  be  seized  under 
attachment  or  execution,  because  not  removable  without  material 
injury  to  it,  —  as  hides  in  the  process  of  tanning, —  he  may 
nevertheless  be  charged  as  garnishee  in  respect  of  such  property, 
because  he  can  hold  it  until  it  be  in  a  condition  to  bo  delivered 
on  execution.'  So,  an  attorney  at  law,  who  has  collected  money 
for  his  client,  may  be  held  as  garnishee  of  the  client,  though  the 
latter  have  made  no  demand  of  payment,  without  which  he  could 
maintain  no  action  against  the  attorney.*  So,  a  person  indebted 
to  two  jointly,  either  on  implied  assumpsit,'^  or  by  note,^  may  be 
charged  as  garnishee  of  one  of  his  creditors,  though  that  one 
could  not  maintain  an  action  against  him  without  joining  his 
co-creditor.     So  where  the  garnishee  is,  when  .summoned,  a  debtor 

r.  Chaae,  37  Ibid.  IU6  ;  Ilutcbins  r.  Uawk-y,  9  Vermont,  2'J5  ;  lioyt  v.  Swift,  13  Ibid. 
129. 

>  BrowTi  r.  Da>i8,  18  Vermont,  211. 

«  Ante,  §  458. 

•  Clark  I'.  Brown,  U  Ma-ss.  a'l. 

♦  Staples  V.  Staples,  4  Maine.  532;  Woodbrid-c  v.  Morse,  5  NVw  ITamp.  519  ;  Thayer 
V.  Sherman,  12  Ma.ss.  441  ;  Rilejr  i:  Hirst,  2  Penn.  State,  .146 ;  Mann  i-.  Biiford,  3  Ala- 
bama. 312.  In  Corey  r.  Powers.  18  Vermont,  .')88,  Wii.liams,  C.  J.,  said  :  "  It  is  ob- 
jected that  no  action  could  have  been  maintained  by  the  debtor  nj^inst  the  trustee, 
without  a  previous  demand,  and  that  becuuse  no  such  demand  was  found  in  the  case, 
the  trustee  should  not  have  been  held  chargeable.  It  is  not  necessary,  to  constitute 
this  relation  of  debtor  and  trustee,  that  a  ri>,'ht  of  action  should  actually  exist  and  be 
perfectC4l  in  the  debtor,  at  the  commencement  of  the  trustee  process.  It  is  sufficient, 
if  property  is  deposited  with  the  trustee,  or  that  he  is  indebted  to  the  principal  debtor, 
thouj;ii  bomethin;;  further  may  be  requisite,  to  constitute  a  ri;;ht  of  action  therefor." 
In  Qui;:g  v.  Kittred-e,  18  New  Ilamp.  137.  the  court  said:  "Actions  cannot  be  main- 
tained by  the  party  entitlc«l,  apiinst  attorneys,  sherifTs,  ajjenta,  &c.,  who  have  moneys 
in  their  hands,  collected,  until  a  demand  fuis  been  made.  So,  bailees  arc  not  an- 
swerable, in  many  coses,  until  there  has  Ix-en  a  demand.  So,  administrators  of  insol- 
vent estates  cannot  bo  char;;ed  until  demand,  after  a  dividend  has  been  declared,  nor 
atlministrators  jjenerally.  for  the  share  of  an  heir.  But  they  may  be  charged  as  trustees, 
althou-jh  there  has  been  no  demand.  The  reason  is,  that  the  process  of  foreiga 
att.ichmcnt  is  not  re^^arded  as  an  adverse  suit,  as  aj,'ninst  the  trustee.  Instead  of  being 
subjected  to  costs,  lie  recovers  costs,  and  these  are  regarded  as  an  indemnity." 

*  Whitney  r.  Munroe,  19  Maine,  42. 
'  Miller  v.  Richardson,  1  ^lissouri,  310. 

[3091 


§  4G5  GARXISUMEXT.  —  GENERAL   VIEWS.  [cHAP.  XVIIL 

of  the  defendant,  but  the  debt  is  payable  at  a  future  time  :  thougli 
the  defendant,  at  tlie  time  of  the  garnishment,  can  maintain  no 
action  against  the  garnishee,  yet  tlie  latter  may  be  chargL-J. 
Thus,  where  a  savings  bank  was  garnished,  and  at  the  time  had 
money  of  the  defendant  on  deposit,  which,  by  the  terms  of  its 
charter,  could  be  withdrawn  by  him  only  at  certain  de^ignated 
times,  and  after  a  week's  notice,  and  upon  the  production  of  his 
pass-l)ook,  or  satisfactory  evidence  of  its  loss,  none  of  which 
requirements  had  been  met  by  tlie  defendant  bpfore  the  garnish- 
ment took  j)lace,  and  therefore  he  then  liad  no  cause  of  action 
against  the  bank  ;  it  was  held,  that  the  bank  was,  nevertheless, 
chargeable  as  garnishee.^ 

§  405.  Still  the  rule  as  stated  may  be  considered  generally  ap- 
plicable, and  it  follows  thence,  that,  without  express  statutory 
warrant,  one  cannot  be  made  liable  as  garnishee  in  respect  of  real 
estate  of  the  defendant  in  his  possession,  and  it  has  been  so  held 
in  several  instances.  In  Maine,-  Massachusetts,^  and  Connecticut,* 
where  the  possession  of  "  goods,  effects,  or  credits  "  of  the  defend- 
ant, by  the  garnishee,  is  the  criterion  of  the  garnishee's  liability, 
real  estate  is  not  considered  to  come  within  the  meaning  of  those 
terms.  In  New  Hampshire^  and  Vermont,^  under  statutes  basing 
the  liability  of  the  garnishee  on  his  possession  of  "  money,  goods, 
chattels,  rights,  or  credits,"  the  same  doctrine  is  held. 

Therefore,  where  A.,  when  about  to  abscond,  fraudulently  exe- 
cuted a  note  to  B.,  and  a  mortgage  to  secure  the  payment  of  the 
note,  and  B.  was  subsequently  garnished,  the  court  said :  "  The 
lands  mortgaged  are  not  effects  within  the  statute,  because  the 
mortgage  being  fraudulent  as  to  creditors,  the  lands  mortgaged 
may  be  taken  in  execution,  either  by  the  plaintiff  or  by  any  other 
creditor.  And  it  has  long  been  settled  that  where  lands  are  fraud- 
ulently conveyed  by  a  debtor,  the  grantee  is  not  thereby  a  trustee 

1  Nichols  V.  Scofield,  2  Ehode  Island,  123.  See  Clapp  v.  Hancock  Bank,  1  Allen, 
394. 

2  Moor  I'.  Towle,  38  Maine,  133;  Stedman  v.  Vickery,  42  Ibid.  132;  Plummer  v. 
Eundlett,  Ibid.  365. 

3  ilow  V.  Field,  5  Mass.  390 ;  Dickinson  v.  Strong,  4  Pick.  57  ;  Ripley  v.  Severance, 
6  Ibid.  474 ;  Gore  v.  Clisby,  8  Ibid.  555 ;  Bissell  v.  Strong,  9  Ibid.  362.  See  Seymour 
V.  Kramer,  5  Iowa,  285. 

*  Risley  c.  Welles,  5  Conn.  431. 
6  Wright  V.  Bosworth,  7  New  Hamp.  590. 
8  Baxter  i'.  Currier,  13  Vermont,  615. 
[310] 


CHAP.  XVIII.]  GARXISUMENT.  —  GENERAL    VIEWS.  §  4Go 

for  creditors,  because,  as  to  them,  the  couveyaucc  is  void,  and  the 
lauds  are  liable  to  their  executions,  without  the  assent  or  exposure 
of  the  grantee.  If  he  was  holden  a  trustee  to  the  value  of  the 
lands,  after  having  paid  one  creditor  that  value,  another  creditor 
might  by  his  execution  take  the  lands  from  him,  and  thus  he 
would  in  elfect  be  charged  with  the  value  without  any  considera- 
tion." ^ 

So,  where  an  insolvent  debtor  had  assigned  personal  and  real 
property  for  the  payment  of  certain  debts,  and  the  assignee  was 
garnished,  he  was  held  not  liable  in  respect  of  the  real  estate ;  the 
court  basing  its  judgment  on  the  following  grounds :  "  There  are 
great  dillieulties  in  charging  the  assignee,  by  the  trustee  process, 
on  account  of  the  real  estate  so  conveyed.  Indeed,  the  provisions 
of  the  statute  cannot  be  executed  upon  it,  according  to  the  inten- 
tion of  the  legislature,  nor  can  real  property  thus  situated  be 
bi-ought  within  any  technical  definition  of  the  words  of  the  statute 
which  designate  the  objects  of  the  process.  Land  is  neither  goods, 
effects,  nor  credits ;  neither  is  the  assignee  indebted  to  the  assignor 
on  account  of  it.  If  this  diHiculty  could  be  overcome  by  giving  a 
broader  siguification  to  the  term  rffcds  than  is  usually  assigned  to 
it,  there  are  other  difJiculties  which  are  quite  insuperable.  The 
sixth  section  of  the  statute  provides  that  the  trustee,  when  judg- 
ment is  rendered  against  the  principal,  and  against  his  goods  and 
elTects  in  the  hands  of  the  trustee,  may  discharge  himself  by  ex- 
posing the  goods  and  effects  of  the  principal  to  the  officer  who  has 
the  execution ;  and  the  officer  may  then  seize  and  sell  them  as  the 
property  of  the  principal.  This  is  wholly  inapplicable  to  land  ; 
which  cannot  be  considered  as  the  principal's  while  the  legal  title 
is  in  the  assignee.  And  then  the  form  of  the  execution  provided 
in  the  statute  manifestly  shows  that  real  estate  was  not  in  the 

1  How  r.  FiiKl,  5  Muss.  390.  In  Hunter  v.  Case,  20  Vermont,  193,  it  was  attempted 
to  sul.jict  a  ;,'ariii.-.hec  to  lialjility  on  atcount  of  real  estate  held  by  liim  under  a  convey- 
anee  which  wa-s  void  as  to  enditors.  The  statutory  provision  bearing  on  the  caac  was, 
that,  if  the  person  summonc<l  as  trustee  should  have  in  his  possession  any  r/ocxls,  ejects, 
or  credits  of  the  principal  defendant,  wiiieh  he  holds  by  a  eonveyanec,  or  title,  that  is 
void  as  to  the  creditors  of  the  principal  defendant,  he  may  be  adjud;,'ed  trustee  on  ac- 
count of  such  K'^ods,  effects,  or  credits,  altliough  the  principal  defendant  could  not 
maintain  an  action  therefor  a-ainst  him.  Bknxett,  J.,  in  deliverin;,'  the  opinion  of 
the  court,  said  :  "  There  can  be  no  pretence  tliat  real  estate  can  be  brou;:ht  within  the 
Btatute.  unless,  indeed,  within  the  term  effects.  Certainly  it  is  not  goodx  or  credits.  It 
is  not  within  the  jwpular  meaning  of  the  term  effcfs.  Tliat  word,  as  ordinarily  used, 
is  understood  to  mean  goods,  movables,  personal  estate ;  and  I  am  not  aware  that  the  word 
efxts  has  even  been  defined  by  any  legal  writer  as  including  real  estate." 

[.Jill 


§  4G5  a  GARNISHMENT.  —  GENERAL   VIEWS.  [CHAP.  XVriL 

contemplation  of  the  legislature,  as  a  subject  of  the  process.  It 
requires  the  sheriff,  for  want  of  goods,  chattels,  or  lands  of  tho 
principal  in  his  own  hands  and  possession,  or  of  goods,  effects,  and 
credits  in  the  hands  of  tho  trustees,  to  be  by  thcra  discovered  and 
exposed,  to  take  the  body  of  the  principal,  <fec.  Now  land  con- 
veyed to  the  assignee  by  a  bond  fide  deed  cannot  be  considered  as 
in  the  hands  or  po.ssessiun  of  the  principal,  nor  can  it  be  considered 
as  goods,  ctlccts,  or  credits  in  the  hands  of  the  trustee."  ^ 

The  reasons  here  given,  though  referring  principally  to  tho 
statute  of  ^lassachusetts,  yet  have  a  general  applicability  ;  as  in 
most  if  not  all  the  States,  a  garnishee  may  discharge  himself  from 
lial)ility  in  respect  of  property  of  the  defendant  in  his  hands,  by 
delivering  it  to  the  officer.  Wherever  this,  is  the  case,  it  would 
seem  to  follow  that  a  garnishee  should  not  be  charged  in  respect 
of  ]>ropcrty  which  he  cannot  so  deliver,  and,  therefore,  not  in  re- 
spect of  real  estate.  But,  aside  from  statutory  provisions,  it  is 
sufficient  that,  if  the  conveyance  to  the  garnishee  be  h)na  fide,  he 
has  no  property  of  the  defeiulant  in  his  j)ossession,  and  if  it  bo 
fraudulent,  tho  property  is  sul)ject  to  tho  execution  against  tho 
defendant,  without  any  disclosure  by  the  garnishee ;  and  that  the 
garnishee  if  made  liable  by  one  creditor  for  the  value  of  the  land, 
may  afterwards  lose  the  land  by  a  sale  under  another  creditor's 
execution. 

But  though  a  garnishee  may  not  be  charged  in  respect  of  real 
estate  of  the  defendant  in  his  possession,  we  shall  hereafter  see 
that  he  may  be,  on  account  of  liabilities  growing  out  of  the  pos- 
session of  such  property. 

§  465  a.  The  whole  scope  of  the  doctrines  stated  in  the  preccd 
ing  sections  of  this  chapter  would  seem  to  indicate  clearly  that 
garnishment  is  a  proceeding  against  third  persons  ;  that  is,  persons 
who  do  not  stand  in  such  relation  to  the  defendant,  as  that  their 
garnishment  is,  in  fact,  but  the  garnishment  of  the  defendant  him- 
self. And  this,  doubtless,  is  the  object  of  the  proceeding  under 
the  custom  of  London ;  where,  "  if  the  plaintiff  will  surmise  that 
another  person  within  the  city  is  a  debtor  to  the  defendant  in  any 
sum,  he  shall  have  garnishment  against  him."^  But  attempts 
have  been  made  to  garnish  individuals,  where  to  do  so  was  in  re- 

1  Gore  V.  Clisby,  8  Pick.  555;  Chapman  i-.  "Williams,  13  Graj,  416. 

2  Ante,  §  1. 

[312] 


CHAP.  XIX.]  WHO   MAY   BE   GARNISHED. 


§477 


a  firm  existing  in  the  State,  were  summoned  as  garnishees,  two 
of  whom  were  residents  of  the  State  of  New  York.  It  was  claimed 
that  none  of  them  were  cliargeable,  because  the  two  non-residents 
being  specially  excepted  from  the  act,  all  the  members  of  the  firm 
were  likewise  excepted,  as  none  were  liable  to  be  prosecuted  on 
the  joint  claim  unless  all  were,  or  could  be  made,  legal  parties  to 
the  record.  But  the  court  held,  that  the  statute  applied  only  to 
cases  where  all  the  garnishees  resided  in  another  State,  and  not 
to  a  case  where  some  of  them  were  residents  of  Vermont,  where 
the  partnership  was  formed  and  had  its  place  of  business  ;  and 
that,  if  the  effects  in  their  hands  are  considered  local,  and  as  re 
maining  at  the  residence  of  the  garnishee,  they  must  be  regarded 
as  remaining  wlicre  the  partnership  was  formed,  its  business  trans 
acted,  and  two  of  its  lucmbcrs  resided.^ 

§  477.    The  principles  which  would  exempt  non-residents  from 
garni.shmcMt  produce  the  same  result  in  the  case  of  a  foreign 
corporation.     This  was  so  determined   in  Massachusetts,  though 
the  oflicers  of  the  corporation  resided,  and  its  books  and  records 
were  kej)t,  in  that  State,  and  tliougli  the  statute  there  declares 
that  "  all  corporations  may  be  summoned  as  trustees."     The  very 
generality  of  the  terms  is  considered  to  require  some  qualification. 
"It  cannot,"  sjiid  tlie  court,  "  be  construed  literally  all  corpora- 
tions, in  whatever  part  of  the  world  estaljlished  and  transacting 
business.     The   answer   is   to  i)e   found    in  the  statutes  in  pari 
mata-la  then  existing.     The  statute  in  question  was  on'ly  an  ex- 
tension of  an  existing  .system.     It  was  intended,  we  think,  to  put 
corporations  on  the  same  ground  as  individuals.     And  it  is  well 
settled  that  an  individual,  an  inhabitant  of  another  State,  is  not 
chargeable  by  the  trustee  process,  although  found  hi  this  common- 
wealth, ;ind  here  served  with  process.     In  the  case  of  corporations 
which  have  no  local  habitation,  the  principle  is  this  :  if  established 
in  this  commonwealth,  by  the  laws  thereof,  they  are  inhabitants 
of  this  commonwealth,  within  the  meaning  of  the  law  ;  l)ut  if 
established  only  by  the  laws  of  another  State,  they  are  foreign 
corporations,  and  cannot   be  charged    by  the   trustee   process."  2 
The  same  views  have  been  expressed  in  New  nampshire.^ 

1  Peck  V.  Biirnum,  24  Vermont,  75. 

«  Danforth  r.  Penny,  3  Metcalf,  564;  Gold  v.  Hoasntonic  Railroad  Co..  1  Gray  424- 
Brndtonl  v.  Mills,  5  Rhode  Island,  393.  ' 

8  iSmitii  r.  li.  C.  &  M.  Railroad,  33  New  Hamp.  337. 

21  [321] 


Ivyy^^j 


i^VuUw^ 


§  478  WHO    MAY    BK    GARNISULD.  [('MAP.  XIX 

But  ill  Pennsylvania,  a  foreign  railroad  corporation  was  held 
as  garni.shee,  where  it  iuul  ucceptod  from  that  State  the  privilege 
of  extending  its  road  through  one  of  the  counties  thereof,  coupled 
with  a  provision  in  the  act  granting  the  privilege,  which  required 
the  company  "  to  keep  at  least  one  manager,  toll-gatherer,  or 
otiior  ofhcer,  a  resident  in  the  county "  ;  on  whom  service  of 
process  "  in  all  suits  or  actions  which  may  ho  brought  against  said 
company,"  was  declared  to  bo  "  as  good  and  available  in  court  as 
if  miidc  on  the  president  tliereof."  *  And  in  Missouri,  under  a 
statute  whieh  provided  that  "  notice  of  garnishment  shall  bo 
served  on  a  corporation,  in  writing,  by  delivering  such  notice, 
or  a  copy  then.'of,  to  the  president,  secretary,  treasurer,  cashier,  or 
other  chief  or  managing  officer  of  such  corporation,"  it  was  held, 
that  a  foreign  insurance  company,  having  an  agency  in  that  State, 
miglit  he  garnished,  by  serving  tiie  notice  ui>on  the  agent  ;  who, 
for  that  jiurposc,  would  be  regarded  as  a  '*  managing  oflTicer," 
within  the  meaning  of  the  statute.^  But  where  an  agent  upon 
whom  the  process  is  served  is  a  non-resident,  and  when  served 
is  only  casually  in  the  State,  no  attachment  of  the  debt  is 
elTectcd.'*' 

§  4TS.  Where,  as  is  sometimes  the  case,  a  corporation  is  char- 
tered by  two  or  more  States,  it  is  not  in  any  of  those  States  a 
foreign  corporation,  and  may  bo  subjected  to  garnishment  in  any 
of  them,  though  its  oflfice  and  place  of  business  be  not  in  the  State 
in  which  the  garnishment  takes  place.* 

1  Jones  V.  New  York  &  Eric  R.  R.  Co.,  1  Grant,  457  ;  Fithian  v.  New  York  &  Erie 
R.  K.  Co.,  31  rotin.  State,  114. 

2  McAllister  r.  Penn.  Ins.  Co.,  28  Mis.<;oiiri,  214. 

»  Willet  I'.  Equitable  Ins.  Co.,  10  AM>ott  Tract.  R.  193. 

♦  Baltimore  &  Ohio  R.  R.  Co.  v.  Gallaluic,  12  Grattain,  655  ;  Smith  r.  B.  C.  &  M. 
Railroad,  33  New  llanip.  337.  Sec  Sprafc'uo  v.  Hartford,  P.  &  F.  R.  R.  Co.,  5  Rhode 
Island,  233. 

[322] 


CHAP.  XX.]       WHAT   PROPERTY   WILL   CHARGE   GARNISHEE.  §  479 


CHAPTER  XX. 

WHAT  PERSONAL   PROPERTY   IN   THE   GARNISHEE'S    HANDS   WILL   MAKE 

HIM    LIABLE. 

§  479,  The  rule  that  the  personal  property  in  the  garnishee's 
hands,  in  respect  of  wliich  he  mav  be  charged,  must  be  such  as  is 
capable  of  being  seized  and  sold  on  execution,  results  from  the 
consideration  that  he  should  be  at  liberty,  if  he  wish,  to  discharge 
himself  from  pecuniary  liability,  by  delivering  the  property  into 
the  custody  of  the  tribunal  before  which  he  is  summoned  ;  and 
therefore,  that  ho  should  not  bo  charged  for  that  which,  if  so 
delivered,  could  not  be  sold  under  execution.  Therefore,  where 
a  garnishee  admitted  that,  when  summoned,  he  had  in  his  posses- 
sion a  horse  of  the  defendant's,  but  showed  that  the  horse  was  by 
law  exempt  from  execution  against  the  defendant,  lie  was  held  not 
to  be  chargeable.^  This  rule  applies  to  the  proceeds,  in  money, 
of  exempted  real  estate  sold  under  execution,  under  a  statute 
authorizing  such  to  be  awarded  to  a  debtor  in  lieu  of  the  prop- 
erty ;  -  and  also  to  money  recovered  l)y  a  debtor  for  the  value  of 
property  exempt  from  execution,  which  had  been  seized  and  sold.^ 
But  if  the  owner  of  property  so  exempt  sell  the  same,  the  debt 
due  him  therefor  may  be  attached.* 

The  garnishee,  in  such  ca.ses,  may  object  to  such  j.roperty  being 
held  by  the  attachment,  though  the  defendant  do  not  raise  the 
question  ;  ^  for  if  the  former  know  of  the  exemption,  and  fail  to 
bring  it  to  the  notice  of  the  court,  and  thereby  be  charged  as 
garnishee,  the  judgment  will  be  no  ])rotection  to  him.^ 

'  Davenport  v.  Swan,  9  Ilumphrcvs,  186  ;  Stanicls  v.  Raymond,  4  Gushing,  314. 
Where  one  held  a  certificate  of  shares  of  stock  in  a  bank  in  another  State,  in  favor  of 
the  defendant,  it  was  held,  that  he  could  not  l)c  charj:ed  as  t:arnishec  in  resi>cct  thereof; 
because  the  court  could  not  subject  either  the  certificate  or  the  stock  to  its  execution. 
Cliristmas  r.  Biddle,  13  Penn.  State.  223.  See  Deacon  v.  Oliver,  14  Uoward  Sup.  Ct. 
610. 

*  Gery  v.  Ehrjrood,  31  Penn.  State,  .329. 
"  Stebbins  r.  Peeler,  29  Vermont,  289. 

*  Scott  V.  Brigham,  27  Vermont,  561  ;  Knabb  v.  Drake,  23  Penn.  State,  489. 

*  Clark  r.  Avcrill,  31  Vermont,  512. 
'  Bock  V.  Johnson,  30  Maine,  464. 

[323] 


§  481  WnKT   PROPERTY    WILL   CHARGE   GARNISHEE.       [CHAP.  XX 

§  480.  By  the  custom  of  London,  attachment  may  be  made  of 
boxes  or  trunks  locked,  and  the  court,  after  four  several  dL'fuulta 
of  the  owner,  gives  judf^nnMit  that  tlicy  bo  opened.  In  Massa- 
chusetts it  WHS  decided  that  no  such  law  or  custom  existed  in 
that  State.  There  a  bank  and  its  president  were  summoned  as 
garnisli'oes,  and  it  aj)peared  that  tht?  defendant  had  deposited  iu 
the  vault  of  tiie  Iwnk,  as  a  place  of  safe  keeping  merely,  a  small 
trunk,  of  the  contents  of  which  no  ofiicer  of  the  bank  knew 
anything,  and  they  had  no  right  to  oj)cn  it.  The  court  held 
the  garnishees  not  liable,  because  it  was  not  shown  that  the 
trunk  contained  attachable  ctlocts,  and  no  presumption  was  admis- 
sible ill  tlie  case.' 

§  481.  It  has  been  uniformly  held,  that  one  having  in  his 
possession  promissory  notes,  or  other  chosen  in  action  of  the  de- 
fendant's, cannot  in  resj)cct  thereof  bo  charged  as  garnishee.' 
Therefore,  where  it  aj)peared  from  the  garnishee's  answer  that  ho 
had  become  security  for  the  defendant,  and  that  the  defendant,  in 
order  to  indemnify  him,  had  placed  in  his  hands  certain  notes  of 
third  persons,  the  proj)erty  of  the  defendant,  it  was  held,  that  the 
notes,  not  being  personal  property  capable  of  being  seized  and 
sold  on  execution,  the  garnishee  was  not  liable  ;  and  that  it  made 
no  dilTerenee  whether  the  proceeds  of  the  notes  were  necessary 
or  not  for  the  indeninification  of  the  garnishee.'  So,  where  the 
garnishee  disclosed  that  he  held  a  certiiin  amount  of  the  notes  or 
bills  of  the  Hillsborough  Bank,  which  had  been  presented  for 
payment  and  refused,  and  which  belonged  to  the  defendant,  it 
was  decided  that  such    bills  or  notes  were  nothing   more  thau 

1  Bottom  V.  Clarke,  7  rushiiiL',  487. 

-  ALiine  F.  &  M.  Ins.  Co.  r.  Weeks,  7  Mass.  4.38  ;  Perry  v.  Coatos,  9  Ihifl.  .5.37  ;  Dick- 
inson r.  Stroll;,',  4  Pick.  57  ;  Androws  r.  Lmllow,  5  Ibid.  28;  Lupton  r.  Cutter,  8  Ibid. 
298;  Gore  v.  Clisby,  Ibid.  S.i.^ ;  Guild  >:  Ilolbrook,  11  Ibid.  101  ;  Hopkins  v.  Kay,  1 
Mctcalf,  79  ;  Meacliiiin  r.  MeCorbitt,  2  Ibid.  .1.52  ;  N.  H.  I.  F.  Co.  v.  Pliitt,  .5  New  Hump. 
193;  Stone  v.  Dean,  Ibid.  502;  Fletcher  r.  Fletcher,  7  Ibid.  452;  Howland  r.  Spencer, 
14  Ibid.  5.30;  Hitchcock  r.  F,i:erton,  8  Vermont,  202;  Van  Amee  v.  .lackson,  35  Ibid. 
173  ;  Knndlet  v.  Jordan,  3  Maine,  47;  Cojjeland  r.  Weld,  8  Ibid.  411  ;  Clark  »•.  Vilcs, 
32  Ibid.  32;  Wilson  r.  Wood,  34  Ibid.  123  ;  Smith  v.  Kennebec  &  Portland  K.  K.  Co., 
45  Ibid.  547  ;  Skowhe^ran  Bank  r.  Farrar,  46  Ibid  293;  Fitch  v.  Waite,  5  Conn.  117; 
Jones  v.  Norris,  2  Alabama,  526;  Marston  v.  Carr,  16  Ibid.  325;  Moore  v.  Pillow,  .3 
Hum])hreys,  448;  Grosvenor  r.  Farmers  &  Mechanics'  Bank,  13  Conn.  104;  Rainrnel 
V.  McConncll,  25  Penn.  State,  362;  Wilson  v.  Albri^Oit,  2  G.  Greene,  125;  Deacon  r. 
Oliver,  14  Howard,  Sup.  Ct.  610  ;  Price  v.  Brady,  21  Texas,  614  ;  Taylor  v.  Gillian,  23 
Ibid.  508. 

'  Maine  F.  &  M.  Ins.  Co.  r.  Weeks,  7  Mass.  438 ;  Dickinson  v.  Strong,  4  Pick,  57. 
[324] 


CHAP.  XX.]        WHAT   PROPERTY   WILL   CHARGE   GARNISHEE.  §  481 

promissory  notes  negotiable  Vjv  delivery,  and,  being  mere  choses 
in  action,  the  garnishee  could  not  be  charged  in  respect  thereof.^ 
But  wliere  a  garnishee  had  received  for  the  defendant  bank-bills 
which  were  citrnnt  as  money,  he  was  charged.^  Where  it  ap- 
peared that  the  garnishee  l>ad  received  from  the  defendant  the 
evidence  of  a  contract  made  by  a  third  person,  engaging  to  de- 
liver to  the  defendant  three  hundred  barrels  of  beef  described 
as  bein<r  under  Bovlston  Market,  such  contract  was  held  to  be  a 
mere  cho»e  in  action,  and  not  attachable  in  the  garnishee's  hands.^ 
So,  where  persons  to  whom  the  defendant  had  made  an  assignment, 
for  tlie  Ijenefit  of  creditors,  of  goods  and  merchandise,  book  del»ts, 
promissory  notes,  and  other  choaes  in  adion,  were  garnished,  under 
such  circumstances  that,  if  they  had  had  goods  or  money  in  their 
possession  they  would  have  been  liable,  it  was  held,  that,  having 
only  choses  in  actim,  they  could  not  be  charged.*  So,  where  an 
assignee  for  the  benefit  of  creditors  had  sold  the  assigned  effects 
on  credit,  and  taken  notes  from  the  purchasers,  and  before  the 
maturity  of  the  notes  ho  was  garnished,  it  was  decided  that  he 
could  not  be  charged.^  So,  where  A.  caused  goods  to  be  insured 
against  loss  by  fire,  and  the  i)olicy  provided  that,  in  case  of  a  loss, 
payment  should  1)0  made  to  B.,  who  held  a  mortgage  on  the 
goods.     The  goods  were  destroyed  by  fire,  and  immediately  after, 

>  Perry  r.  Coates,  9  Mass.  5.17.  In  Massachusetts  this  case  occurred.  The  Suffolk 
Bank  was  summonid  as  jjtirnishce  of  the  Nahant  Bank,  at  a  time  when,  under  an 
arrunj;enient  iRtween  the  two,  tlie  former  had  in  its  iHj>ses.-.ion  a  hirj;e  uiiionnt  of  tho 
notes  of  the  latter  issue<l  a.s  a  eirculatinj,'  medium,  and  whieh  the  statute  of  that  State 
authorizol  to  be  attached.  It  appeared  that  the  Sulfolk  Biink  wa«  accustomed  to  take 
np  the  bills  of  the  Niihant  Hank  in  the  common  course  of  business,  to  cliur>,'C  the 
amount  to  the  lat'ter,  and  from  time  to  time  to  retuni  t!ic  bills  thus  char;;ed  to  the 
Nahant  bank  ;  and  that  to  meet  the  amount.s  so  (•har;rcd,  the  Xahant  Bank  wius  accus- 
tomed to  place  funds  with  the  Sutlt.lk  Hank,  whieh  went  to  balance  the  account.  The 
question  was,  whether  tlie  SulV..lk  Hank  could  be  char-ed  as  garnishee  in  respect  of  its 
possession  of  the  bills  of  the  Xahant  Hank.  The  court  held,  that  the  Suffolk  Bank 
mnst  be  considered,  either,  as  the  aj,'ent  of  the  Xahant  Bank,  taking  up  the  bills  of  the 
latter  for  its  account  out  of  funds  prrjvided  for  it  or  advanced  by  the  Suffolk  Hank  for 
that  purpose,  — in  whieh  casi',  the  notes,  when  so  taken  up,  were  no  longer  bills  issued 
and  circulated  as  money,  and  therefore  not  attachable,  — or  as  holders  of  the  bills  on 
their  own  account,  for  value,  and  entitled  to  hold  them  as  vouchers  to  support  the 
charges  in  their  account,  and  thus  cancel  and  discharge  the  credits  given  by  them  to 
the  Xahant  Hank  ;  an.l  that  in  either  view  tho  Suffolk  Bank  was  not  chargeable. 
Wddes  r.  Xahant  Hank,  20  Pick.  352. 

2  Morrill  v.  Brown,  15  Pick.  173 ;  Lovcjoy  v.  Lee,  35  Vermont,  430. 

'  Andrews  v.  Ludlow,  5  Pick.  28. 

♦  Lupton  F.  Cutter,  8  Pick.  298 ;  Gore  r.  Clisby,  8  Ibid.  555 ;  Copeland  v.  WelJ,  8 
Maine,  411. 
»  »  Hopkins  v.  Ray,  1  Metcalf,  79. 

[325] 


§  481  WHAT   PROPERTY   WILL   CHARGE   GARNISHEE.        [CHAP.  XX. 

and  before  the  loss  had  been  proved  according  to  the  provisions 
of  tlie  policy,  B.  was  garnished.  Afterwards  B.  received  tlie 
amount  of  the  loss,  retained  what  was  due  him,  and  paid  the 
balance  on  A.'s  oinlcr  to  a  third  |HM-son.  It  was  decided  that  the 
right  to  collect  the  money  accruing  under  the  policy  was  a  mere 
chose  in  action,  and  that  B.  was  not  liable.^  So,  an  attorney  who 
has  in  his  care  a  debt  in  the  course  of  collection,  belonging  to  a 
defendant  in  attachment,  cannot  be  holden  as  garnishee  on  that 
account.2  s^^  a  note  deposited  in  one's  liands,  and  not  collected, 
will  not  subject  him  as  garnislu?c,  even  though  a  judgment  has 
been  recovered  on  it  in  his  namo.^  So,  whore  a  person  holds 
real  estate  upon  a  promise  to  sell  it  and  pay  over  the  proceeds, 
and  ho  s(dls  it,  and  takes  notes  for  the  purchase-money,  he  cannot 
be  lield  as  garnishee,  in  respect  of  the  notes.*  So,  where  one 
had  contracted  to  deliver  to  another,  at  a  certain  time,  a  note  of  a 
third  person  for  a  given  amount,  and  before  the  time  of  delivery 
he  was  garnished,  it  was  held,  that  he  could  not  be  charged.^  So, 
where  one  had  received  a  check,  with  authority  to  draw  the 
amount,  and  pay  it  to  the  defendant  on  certain  conditions,  which 
had  been  complied  with ;  but  it  did  not  appear  that  he  had  re- 
ceived the  n\onoy ;  it  was  decided  that  he  could  not  be  charged 
on  account  of  the  check.* 

1  Mcachara  v.  McCorbitt,  2  Mctcalf,  352. 

^  Ilitchtock  V.  EtjLTton,  8  Vermont,  202;  Fitch  v.  "Waitc,  5  Conn.  117. 

'  Rundlct  V.  Jordiin,  3  Maine,  47. 

*  Guild  I'.  Iloihrook,  11  Tick.  101. 

»  New  Hump.  I.  F.  Co.  v.  I'latt,  5  New  Ilamp.  193. 

•  Lane  i'.  Felt,  7  Gray,  491. 

[326] 


CHAP.  XXl]       WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.  §  482 


CHAPTER  XXI. 

WHAT    POSSESSION    OF    PERSONAL    PROPERTY    BY   A    GARNISHEE    WILL 
MAKE    HIM    LIABLE. 

§  482.  I.  Actual  and  constructive  possession.  When  a  garnishee 
is  suninKJMt'd,  the  elTect  of  the  proceeding  is  to  attach  any  personal 
property  of  the  defendant  in  his  possession,  capable  of  being  seized 
and  sold  under  execution.  And  it  is  a  general  rule  that  the 
property  must  be  in  the  actual  possession  of  the  garnishee,  or 
within  his  control,  so  that  he  may  be  able  to  turn  it  out  on  exe- 
cution.^ But  tiiough  not  in  his  actual  possession,  if  he  have  the 
right  to,  and  the  power  to  take,  immediate  possession,  he  must  be 
regarded  as  being  in  possession.^ 

The  proposition,  however,  that  a  garnishee  is  liable  for  personal 
property  of  the  defendant  in  his  possession,  applies  only  to  cases 

1  Andrews  v.  Ludlow,  5  Pick.  28 ;  Burrcll  v.  Letson,  1  Strobbart,  239.  The  peculiar 
lanj^uuj,'*,'  of  tile  Trustee  Act  of  Massachui^etts  —  by  the  terms  of  wliich  tlie  liability  of 
the  paniishee  i*  based  on  his  havinj;  "{^(XkIs,  cfTectj*,  or  credits  of  the  j)rinci|)al  defend- 
ant intrusted  or  defiositfd  in  his  hands  or  possession  "  —  received  a  construction  by  the 
Supreme  Court  of  that  State,  in  Staniels  v.  Raymond,  4  Cushint;,  .314.  The  ^'arnishee 
had  in  his  jKJssession,  when  summoned,  a  cow  of  the  defendant's,  for  the  purchase  of 
wliich  be  bad  U-cn  in  treaty  with  the  defendant.  No  bar;,'ain  had  l>ecn  completed,  and 
before  the  time  of  tryinj;  the  cow  had  ex[»ired,  and  before  the  pami>hmcnt,  the  f^arnishce 
had  notified  the  defendant  that  he  should  not  purchase  the  cow,  and  had  delivered  her 
to  him,  but  the  defendant  left  her  in  his  possession,  where  she  was  at  the  time  the 
garnishee  was  summoned.  The  court  held,  that  this  was  not  such  a  possession  of  the 
cow  as  would  render  the  garnishee  liable,  and  said :  "  The  cow  had  not  been  taken 
away,  and  the  question  is,  whether  the  mere  [wssession  of  the  cow,  without  any  claim 
of  right,  by  the  supposed  trustee,  renders  him  chargeable ;  and  in  the  opinion  of  the 
court  it  does  not.  It  may  well  be  doubted,  whether  the  trustee  is  chargeable  according 
to  the  literal  construction  of  the  statute.  The  words  '  intrusted  or  deposite<l '  imply, 
in  their  ordinary  signification,  something  more  than  mere  possession;  but  if  it  were 
othcnvise,  such  a  construction  would  be  unreasonable  and  inadmissible ;  for  thereby  an 
innkeeper  would  be  chargeable  for  the  property  of  a  traveller,  which  he  might  have  in 
his  possession  for  the  shortest  time ;  and  the  hirer  of  a  horse  for  a  ride,  might  be 
charged  as  trustee We  think  it  never  could  have  been  the  intention  of  the  legisla- 
ture, that  the  mere  possession  of  property,  by  a  party  having  no  claim  to  hold  it  against 
the  owiier,  should  render  him  liable  therefor  as  trustee,  and  thereby  to  be  subjected  to 
trouble  and  expense  in  answering  to  a  claim  in  which  ho  has  no  interest.  Such  a  con- 
struction of  the  statute  would  be  prejudicial  in  very  may  cases,  and  cannot  be  admitted  ; 
nor  do  we  think  that  a  literal  construction  of  the  statute  would  render  the  supposed 
trustee  chargeable." 

a  Lane  v.  Nowell,  1.5  Maine,  86;  Morse  v.  Holt,  22  Ibid.  180. 

[327] 


§  484  WHAT   POSSESSION'   WILL   CHARGE   GAKNMSIIKK.      [cHAP.  XXL 

wliero  ho  knows  that,  when  giiniisheJ,  he  hud  such  projiorty  iii 
his  hands.  If  ho  then  hud  property  in  his  possession,  received 
from  u  third  person,  whieii  was  in  fact  the  defendunt's,  hut  not 
known  to  him  to  bo  so,  and  ho  parted  with  it  before  ho  became 
uwure  of  that  fact,  he  cannot  be  charged  in  respect  thereof.^ 

§  483.  Constructive  possession  of  the  defendant's  property  will 
not  suffice  to  make  the  garnishee  liable.  Thus,  where  the  gar- 
nishee had  left  in  the  hands  of  merchantij  in  a  foreign  jwrt,  goods 
of  the  defeiidant,  which  had  been  under  his  charge  as  master  of 
a  schooner,  it  was  held,  thut  ho  was  not  liuble  on  account  of  the 
goods,  tiie  same  not  being  in  liis  possession  when  he  was  ganii>hcd, 
though  he  held  the  receipt  of  the  foreign  merchants  therefor.* 
So,  where  goods  were  consigned  by  merchants  in  Philadtlphia 
to  merchants  in  Boston,  and  after  the  latter  received  the  bill  of 
lading,  but  before  the  goods  arrived,  they  were  garni>l»ed,  it  was 
decided  that  they  were  not  liable,  not  having  the  goods  in  posses- 
sion when  summoned."'  So,  wliere  the  garnishees  stated  that  a 
part  of  the  property  transferred  l>y  the  defendant  to  them  consisted 
of  parts  of  certain  ships,  with  their  cargoes,  then  at  sea,  thoy  were 
hold  not  chargeable,  because  they  had  not  actual,  but  only  con- 
structive, possession  of  tlic  property.* 

§  484.  But,  where  the  agent  of  a  garnishee  had  collected  money 
for  the  garnishee,  in  respect  of  which  the  latter  would  have  been 
liable,  had  he  himself  received  it,  he  was  charged,  though  at 
the  time  of  the  garnishment  the  money  had  not  been  paid  over 
to  him  by  the  agont.^  So  where  one  in  Pennsylvania  was,  by  his 
agent  in  Ohio,  in  possession  of  goods  of  the  defendant,  he  was 
charged  as  garnishee  of  the  defendant  under  an  attachment  tukoa 
out  in  Pennsylvania.® 

1  Bin;,'ham  r.  Lnrnpintr,  26  Pcnn.  State,  340. 

*  Willard  v.  Slieafe,  4  Miiss.  235.  Tlus  case  does  not,  in  itself,  apf)ear  to  have  been 
decided  on  this  ground,  but  in  Andrews  v.  Ludlow,  5  Pick.  28,  it  is  so  stated  by 
Wilde,  J. 

^  Grant  v.  Shaw,  16  >Liss.  341.  The  report  of  this  case  does  not  imlicate  clearly  the 
point  stated  in  the  text,  but  in  Andrews  v.  Ludlow,  5  Pick.  28,  it  is  stated  by  Wilde,  J., 
to  have  been  decided  on  that  ground. 

*  Andrews  v.  Ludlow,  5  Pick.  28. 

s  Ward  V.  Lara^on,  6  Pick.  358.  The  question  of  actual  and  constructive  possession 
does  not  seem  to  have  been  before  the  court  in  this  case. 

<>  Childs  r.  Digby,  24  Penn.  State,  23.     See  Glenn  i;.  Boston  &  Sandwich  Glass  Co., 
7  Maryland,  287. 
[328] 


CHAP.  XXI.]      WH.\T   POSSESSION  WILL   CHARGE   GARNISHEE.  §  487 

§  485.    II.  Possession  considered  ivith  reference  to  privity  of  con- 
tract and  of  interest  between  the  garnishee  and  the  defendant.     The 
garnishee  must  not  only  have  actual  ix)ssession  of  the  defendant's 
effects,  but  there  must  be,  except  in  cases  of  fraudulent  dispositions 
of  property,  privity  between  him  and  the  defendant,  both  of  contract, 
express  or  implied,  and  of  interest,  by  which  the  defendant  would 
have  a  right  of  action,  or  an  equitable  claim,  against  the  garnishee, 
to  recover  the  projMjrty  for  his  own  use,  either  at  the  present  or 
some  future  time.^     The  want  of  privity,  either  of  contract  or  of 
interest,  will    generally  prevent   the   garnishee's   being   charged. 
Property  may  be  in  the  garnishee's  hands,  in  which  the  defendant 
lia.s  an  interest,  but  wliich  the  garnishee  may  be  under  no  legal 
obligation  to  deliver  to  him ;  and  as  the  plaintitT  can  exercise  no 
greater  control  over  the  property  in  such  case  than  the  defendant 
could,  the   garnishee   cannot   be    charged.     There  may,   too,  bo 
property  in  the  garnishee's  hands,  the  legal  title  to  wliich  is  in 
the  defendant,  and  for  which  the  defendant  might  maintain  an 
action  against  the  garnishee,  and  yet  the  latter  not  be  liable  as 
garnishee.     Such,  for  instance,  as  held  in  New  Hampshire,  is  tho 
case  of  a  i)arty  wiio  has  taken  the  goods  of  another  by  trespass, 
and  who  cannot,  in  respect  thereof,  be  held  as  garnishee  of  the 
owner,  tliough  the  legal  title  is  in  the  latter,  and  he  might  main- 
tain an  action  for  the  trespass.^     Such,  too,  is  the  case  of  one  in 
whom  tho  legal  title  to  goods  is  vested,  but  who  has  no  interest 
of  his  own  in  them. 

§  48G.  The  doctrine  here  advanced  may  be  illustrated  by  several 
cases  which  have  arisen ;  and  it  will  be  considered,  1.  with 
reference  to  j.rivity  of  contract  between  the  garnishee  and  the 
defendant,  ami,  2.  with  reference  to  privity  of  interest  between 
tiiem. 

§487.  \.  Privity  of  Contract.  Money  was  placed  in  the  hands 
of  certain  trustees,  to  be  by  them  appropriated,  at  their  discretion, 
for  the  maintenance  and  sui)port  of  a  pon  of  the  donor,  during 
his  life,  and  afterwards  to  distrilmte  it  among  the  other  children 
of  the  donor.     While  yet  a  portion  of  the  money  was  in  the  hands 

*  Cnshing'8  Trustee  Process,  §  101  ;  Post,  §  490;  Skowhegan  Bank  v.  Farrar,  46 
Maine,  293. 

«  Despatch  Line  r.  Bellamy  Man.  Co.,  12  New  Hamp.  205.  See  Everett  v.  Ilemn, 
48  Maine.  537.  '  ^.^^^-j 


§487  ^MIAT   POSSESSION   WILL   CHARGE   GARNISHEE.      [cHAP.  XXL 

of  the  trustees,  tliey  wore  summoned  as  garnishees  of  the  son, 
and  the  court  held,  that  they  could  not  be  charged,  because  they 
were  in  no  view  indel)ted  to  him,  and  he  could  maintain  no  action 
for  the  sum  committed  in  trust  to  thcm.^  Here,  tlie  defendant 
had  an  interest  in  the  money  in  the  garnishee's  hands,  but  there 
was  no  privity  of  contract.  A.  made  his  bond  to  B.,  conditioiUMl 
to  pay  B.  a  yearly  sum  during  the  life  of  C,  to  be  applied  by  1>. 
to  the  maintenance  of  C,  his  wife  or  family,  or  any  member  of  it, 
according  to  B.'s  judgment  and  discretion.  .  A.  was  sunnnoned  as 
garnishee  of  B.  and  C,  at  a  time  when  a  portion  of  the  annuity 
was  due  and  unpaid  ;  and  the  court  held,  that  he  could  not  be 
charged  as  garnishee  of  cither,  because,  firsts  ho  was  under  no 
legal  obligation  to  C,  the  ceHtni  rpie  tnixt,  and  C.  could  maintain 
no  action  against  him  ;  and,  second^  though  H.,  the  trustee,  might 
maintain  an  action  against  him  for  the  money,  yet  B.  was  to 
receive  the  money,  not  for  his  own  use,  but  to  be  applied  to  the 
sui)i)ort  of  C.  In  other  words,  between  A.  and  C.  there  was  no 
j)rivity  of  contract,  and  B.  had  no  interest  in  the  money.^  A 
sheritf  attached  goods  of  the  defendant's,  and  employed  an  auc- 
tioneer to  sell  them  at  public  auction,  and  the  auctioneer,  while 
the  proceeds  of  the  sale  were  in  his  hands,  was  sunnnoned  as 
garnishee  of  the  defendant ;  and  it  was  held,  that  he  was  not 
liable,  as  there  was  no  privity  between  him  and  the  defcndiint,  and 
that  he  should  account  to  the  oflicer  who  employed  liim.^  A. 
received  a  certain  sura  of  money  from  B.,  for  the  purpose  of 
paying  off  a  mortgage  resting  ujwn  the  land  of  C.  A.  was  sum- 
moned as  garnishee  of  C,  and  was  discharged,  because  the  money 
was  not  C.'s,  and  because  there  was  no  privity  between  A.  and  C* 
So,  where  A.  delivers  to  his  agent  B.  money  to  be  paid  over  to  C. 
Until  C.  acquires  a  knowledge  of  the  delivery  to  B.  for  that 
purpose,  and  B.  has  agreed  with  him  to  deliver  it  to  him,  tliere 
is  no  privity  of  contract  between  them,  and  B.  cannot  be  charged 
as  garnishee  of  C.^  So,  where  a  son  was  permitted  to  build  a 
house  on  his  father's  land,  under  the  expectation   that  the  land 

1  White  V.  Jenkins,  16  Mass.  62. 

2  Brigden  v.  Gill,  16  Mass.  522.     See  Hinckley  v.  Williams,  1  Gushing,  490, 

*  Penninian  v.  Ru<;j;les,  6  New  Hamp.  166. 

*  Wright  V.  Foord,  5  New  Hamp.  178. 

6  Neuer  v.  O'Fallon,  18  Missouri,  277  ;  Briggs  v.  Block,  Ibid.  281  ;  Barnard  v.  Graves, 
16  Pick.  41  ;  Huntley  v.  Stone,  4  Wisconsin,  91 ;   Eichelberger  v.  Murdock,  10  Mi\ry- 
land,  373  ;  Towne  v.  Griffith,  17  New  Hamp.  165. 
[330] 


CHAP.  XXl]      WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.  §  488 

would,  by  devise,  come  to  him  at  the  death  of  his  father,  and  the 
father  was  summoned  as  garnishee  of  the  son,  it  was  held,  that  he 
could  not  l)e  charged,  because  there  was  no  contract,  express  or 
implied,  tliat  he  sliould  be  accountable  to  the  son  for  the  value  of 
the  house. ^  So,  where  certain  policies  of  insurance  were  assigned 
by  A.  to  B.,  and  the  assignment  contained  a  clause  to  the  effect 
that  any  surplus  of  the  proceeds  of  the  policies  should  be  paid 
to  C,  who  was  not  a  party  to  the  assignment ;  it  was  held,  that 
B.  could  not  be  charged  as  garnishee  of  C,  because  there  was  no 
privity  of  contract  between  B.  and  C.'^ 

§  488.  A  garnishee  answered  that  he  had  in  his  hands  a  sum 
of  money  bt-longing  to  A.,  and  that  he  had  received  notice  of  an 
assignment  of  the  money  by  A.  to  the  defendant ;  but  it  did  not 
appear  that  the  garnishee  had  ever  promised  the  defendant  to  pay 
it  to  him  ;  and  he  was  held  not  to  V)e  chargeable,  because,  though 
an  action  for  the  money  might  be  maintained  against  him  in  the 
name  of  A.,  for  the  defendant's  use,  yet  there  was  no  privity  of 
contract  between  him  and  the  defendant,  which  would  make  him 
liable.3 

1  Wells  r.  BiinisUT,  4  Mass.  5U  ;  Roan  v.  Bean,  .3.3  New  Ilamp.  279.  But  where  the 
proiH-rty  in  the  >;urnisheo'.s  hands  is  in  the  name  of  one  as  a  trustee,  holdin;,'  it  merely 
for  the' use  of  the  defendant,  this  presents  no  obsUicle  to  holdin-;  it  by  ^garnishment, 
because  tlie  U-neficial  interest  is  in  the  defen<lant,  aceompanied  with  a  present  right  of 
possession  and  enjoyment.     Uaynes  v.  Lowell  I.  B.  Society,  4  Civshinj,',  343. 

2  Fiehl  c.  Crawford,  6  Gray.  116. 

«  Fol.-om  V.  Ha.skell,  1 1  Cushin;;,  470.  By  Sn.vw,  C.  J. :  "  The  question  in  tliis  case 
is,  whether  a  y>artv  to  wiiom  a  rlionf  in  mtion  has  been  assi;:ned,  so  that,  prima  facie,  he 
could  maintain  an  action  then-on  in  the  name  of  the  ajisi;,mor,  is  put  in  such  a  reiatioa 
to  the  debtor  liiat  the  latter  can  be  summoned  as  his  trustee.  The  tendency  of  our 
laws  is  to  exempt  the  person,  but  the  more  etfectually  to  char|,'e  tlie  jiroperty  of  the 
debtor;  yet  as  this  is  the  first  atu-mpt  to  charjje  a  trustee  under  such  circumstances, 
although  our  statutes  repulatin;;  tlie  trustee  j.roeess  have  been  in  force  for  seventy 
years,  it  becomes  the  court  to  look  carefully  at  the  case. 

"  It  is  conceded  that  an  action  would  lie  a^'iinst  the  alleged  trustee  for  this  money 
in  the  name  of  the  assignor.  We  are  of  ojiinion  that  this  is  not  enough ;  but  that  ia 
order  to  charge  the  trustee  he  must  Ik."  directly  liable  to  the  defendant.  The  assignee 
of  a  chose  in  wlion  is  made  the  attorney  of  the  creditor  to  collect  the  debt  and  liold  the 
proceeds  to  his  own  u.se.  The  debtor  has  nothing  to  do  with  the  relation  between  the 
assignor  and  his  assignee.  How  can  he  know  or  try,  in  this  form  of  proceeding,  the 
question  whether  the  assignment  was  duly  executed,  or  whether  if  executed  it  lias  been 
discharged  or  revoked,  or  whether  other  jx-rsons  have  obtained  rights  by  other  valid 
assignments  ?  The  whole  theory  of  the  trustee  process  is,  that  the  trustee  is  a  stranger 
to  the  suit,  and  his  liability  is  to  be  decided  on  his  own  answers,  and  on  focts  within  his 
own  knowledge;  and  the  reason  is,  that  he  knows  the  relation  between  himself  and  his 
creditors.  But  there  is  no  relation,  no  privity,  between  him  and  the  assignee  of  his 
creditor.  If  the  trustee  had  promised  to  pay  the  debt  to  the  assignee,  the  case  would 
be  different,  for  the  latter  would  then  be  the  legal  creditor." 

[331] 


§  489  WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.      [cilAT.  XXL 

§  489.  2.  Privity  of  Interest.  The  next  class  of  cases,  illustra- 
tive of  the  general  doctrine  advanced,  is,  where  there  is  a  privity 
of  contract  between  the  garnisliee  and  the  defendant,  but  no  priv- 
ity of  interest.  In  such  cases,  though  the  garnishee  have  in  his 
possession  j)roperty  or  money  which  he  is  l>ound  by  et)ntract  to 
deliver  or  pay  to  tiie  defendant,  and  for  which,  therefore,  the  de- 
fendant might  maintain  an  action  against  him,  yet  he  cannot  be 
charged  as  garnishee  in  respect  thereof,  because  the  dt'f«'ndant 
himself  has  no  interest  therein.  Such  are  the  cases  where  the 
effects  in  the  garnishee's  hands  belong  to  the  defendant  as  a  mere 
trustee  or  agent  for  others.  There,  it  is  not  only  sound  doctrine 
technically,  but  in  entire  accordance  with  every  principle  of  justice, 
that  though  the  legal  title  to  the  effects  in  the  garnishee's  {>os8e9- 
sion  be  in  the  defendant,  yet  as  they  do  not  in  fact  belong  to  him, 
but  to  others,  they  shall  not  be  taken  to  discharge  his  debts.* 

Tiierefore,  whore  it  appeared  from  the  answer  of  the  garnishee, 
that  he  had  executed  a  bond  to  the  defendant,  the  condition  of 
wliich  was,  that  he  should  pay  the  defendant  a  certain  sum,  part 
of  which  only  was  the  defendant's  property,  and  the  rest  for  the 
benefit  of  other  persons;  the  court  held,  that  the  garnishee  should 
not  be  charged  for  that  part  of  the  bond  which  was  due  to  the  other 
persons,  and,  in  delivering  their  oj>inion,  say:  "The  bond  is  made 
to  the  defendant,  and  he  had  a  right  to  demand  jiayment  of  it,  and 
to  sue  it ;  but  styi,  as  it  appears  that  in  taking  the  bond  he  acted 
as  the  trustee  of  others,  it  being  given  for  the  considi'ration  of  the 
purchase  of  an  estate,  the  life  interest  in  which  was  in  his  mother, 
and  the  reversionary  interest  in  his  brothers  and  sisters  and  their 
cliildren,  the  money  secured  by  the  bond  ought  in  equity  to  bo 
distributed  among  the  devisees  of  the  estate  in  the  proportions  in 
which  they  held  the  estate."  *  So,  in  the  case  previously  referred 
to,  where  A.  had  given  a  bond  to  B.,  by  which  he  bound  himself  to 
pay  B.  a  certain  yearly  sum,  to  be  approj>riatcd  to  the  supj)ort  of  C, 
and  A.  was  summoned  as  garnishee  of  B. ;  it  was  held,  that  ho 
could  not  be  charged,  because  the  money  due  on  the  bond  was  not 
his  own,  but  to  be  appropriated  for  the  use  of  others.^  So,  where 
a  factor  del  credere  sold  goods  of  his  principal,  without  the  pur- 
chaser knowing  at  the  time  that  he  was  a  factor,  but  was  after 

1  Simpson  v.  Hurry,  1  Dcvcrcux  &  Battle,  202  ;  Miller  v.  Riclmrdson,  1  Missouri,  310; 
Jones  V.  jpAna.  Ins.  Co.,  14  Conn.  501  ;  Pickering  v.  'Wonicll,  20  New  Ilamp.  222. 
-  Willard  v.  Sturtevant,  7  Pick.  194. 
«  Brigden  v.  Gill,  16  Mass.  522. 
[332] 


CHAP.  XXI.]      WHAT   POSSESSION   MILL   CHARGE   GARNISHEE.  §  490 

wards  notified  by  the  owner  of  the  goods  that  they  were  his ;  it 
was  decided  that  the  debt  due  for  the  goods  belonged  to,  and  was 
claimable  l)y,  the  principal,  and  that  the  purchaser  could  not  be 
held  as  garnishee  of  the  factor,  for  anything  beyond  the  amount 
of  the  factor's  lien  for  his  commission.^  So,  where  goods  were 
shipped  on  a  vessel,  and  freight  earned  for  the  transportation 
thereof,  and  the  shipper  was  summoned  as  garnishee  of  the  master 
of  the  vessel,  and  it  appeared  that  the  owners  of  the  vessel  were 
not  indebted  to  the  muster,  it  was  held,  that  the  garnishee  was 
not  chargeable,  and  the  court  based  its  decision  on  the  following 
grounds :  "  The  agreement  of  the  master  o|)crated  to  make  or 
create  a  contract  between  the  owners  and  the  freightei*s,  as  well  as 
between  the  master  and  the  freighters.  The  master  is  the  mere 
agent  of  the  owners,  reraovah>le  at  pleasure.  He  contracts  on  the 
personal  resp()iisil)ility  of  the  owners,  and  has  no  remedy  for  his 
wages,  as  mariners  have,  against  the  sliip.  But,  iiuismuch  as  ho 
may  hypothecate  the  ship,  and  the  freight,  and  the  cargo,  for 
necessaries  in  a  foreign  port,  it  has  Iteen  held  in  ^lassachusetts 
and  New  York,  contrary  to  the  English  decisions,  that  he  has  a 
lien  ujMjn  tlie  freight  for  necessary  disbursements  and  expenses. 
And  the  able  judge  of  the  United  States  Court  of  this  district,  has 
extendt'd  the  claim  also  to  his  wages.  But  with  the  question,  for 
what  matters  or  claims  the  master  may  have  a  lien  on  the  freight, 
we  have,  in  the  case  at  bar,  no  concern  ;  for  the  ijiaster  has  been 
fully  p:iid  l>y  the  owners.  They  may,  therefore,  comjtel  the  pay- 
ment of  freight  to  themselves.  The  master,  under  these  circum- 
stances, has  no  more  right  to  the  freight-money  tluiu  he  has  to  tho 
ship.     Both  belong  to  the  owners."  ^ 

§  490.  Privity  of  Contract  and  of  Interest  combined.  We  see 
from  the  foregoing  citations  the  force  and  scope  of  the  doctrine 
that  privity  of  contract  and  of  interest  must  in  general  combine  in 
order  to  charge  the  garnishee  in  respect  of  property  of  the  defend- 
ant ;  and.  wherever  such  combination  exists,  there  is  a  right  of 
action  in  the  defendant  against  the  garnishee,  either  at  tlie  jnesent 
or  a  future  time.  The  presentation  of  a  few  cases  illustrative  of 
this  point  will  close  the  consideration  of  this  branch  of  the  subject. 

Where  property  is  placed  in  the  hands  of  one,  to  be  sold,  and 
the  proceeds  applied  to  a  particular  j)urpose,  and  upon  the  sale 

»  Titromb  r.  Scaver,  4  Maine,  542.  -  Richardson  v.  Whiting,  18  Pick.  530, 

[333] 


§  490  WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.      [rilAP.  XXI. 

there  appears  a  surplus  of  money  over  what  is  necessary  for  the 
given  purpose,  liu  will  be  held  as  givrnishee  of  the  person  to  whom 
the  property  belonged,  because  privity  of  contract  combines  witli 
privity  of  interest  to  give  the  defendant  a  right  of  action  to  recover 
the  surplus.^  So,  for  the  same  reason,  one  holding  real  estiite  of 
the  defendant  in  his  own  name,  but  in  trust  for  the  defendant, 
and  accountable  to  the  defendant  for  the  rents  and  profits  thereof, 
or  for  the  proceeds  of  the  same,  if  sold,  will  be  held  as  garnishee 
of  the  defendant,  to  the  amount  of  the  rents  and  profits  in  his 
han(ls.2  So,  where  the  principal  in  a  l)ond  to  the  United  States, 
having  become  a  defaulter  and  left  the  country,  his  surety  paid, 
without  suit,  81,000,  and  tlit-n  arrested  tlie  principal  in  Matanzas, 
in  a  suit  on  a  bond  of  indonmity,  and  UjKDn  receiving  is 2,000  gave 
this  bond  up  to  the  principal.  The  bond  to  the  United  States  was 
afterwards  put  in  suit,  and  the  judgment  recovered  on  it  was  sat- 
isfied l)y  a  levy  upon  land  sup[)osed  to  belong  to  the  principal, 
which  the  United  States  afterwards  sold,  and  the  sum  piiid  by  the 
surety  was  restored  to  him.  After  this  the  surety  was  summoned 
as  garnishee  of  the  principal,  and  it  was  held,  that  tht^  princijial 
was  entitled  to  recover  back  the  money  paid  in  Matanzas,  and  that 
the  surety  was  therefore  liable  as  his  garnishee.*  So,  where  prop- 
erty claimed  by  A.,  being  libelled  in  an  admiralty  court  as  a  prize, 
was  delivered  to  B.,  to  indemnify  him  for  bonds  given  by  him  in 
that  court  in  behalf  of  A.,  and  after  a  decree  of  restitution  by 
which  the  bonds  so  given  were  discharged,  B.  was  sunmioned  as 
garnishee  of  A.,  he  was  held  as  such,  because  A.  had  a  right  of 
action  against  him  to  recover  the  property  so  delivered.''  So, 
where  a  garnishee  answered  that,  as  guardian  of  an  infant,  he  had 
sold  land  to  the  defendant,  under  a  license  of  court,  but  that  he 
had  not  given  the  bond  nor  taken  the  oath  required  by  law  previous 
to  such  sale  ;  that  part  of  the  purchase-money  had  been  paid,  and 
a  deed  had  been  executed  and  placed  in  the  hands  of  a  third  per- 
son, to  be  delivered  when  the  residue  should  be  paid  ;  and  that  the 
defendant,  soon  after  the  sale,  entered  and  was  still  in  possession 

1  Picrson  v.  "Wcller,  3  Mass.  564  ;  New  England  Mar.  Ins.  Co.  v.  Chandler,  16  Uiid. 
275 ;  Webb  v.  Peale.  7  Pick.  247  ;  Richards  v.  Allen,  8  Ibid.  405 ;  Heam  j.-.  Crutcher, 
4  Yerfrer,  461  ;  Cook  v.  Dillon,  9  Iowa,  407. 

•^  Knsscll  V.  Lewis,  15  Mass.  127;  Park  v.  Matthews,  36  Penn.  State,  28;  8.  c.  2 
Grant,  1.16. 

»  Watkins  v.  Otis,  2  Pick.  88. 

*  Thompson  v.  Stewart,  3  Conn.  171. 
[334] 


CHAP.  XXI.]      WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.  §  491 

of  the  land ;  it  was  held,  that,  because  there  was  neither  oath  nor 
bond  of  the  <,'uardiaii,  the  sale  was  invalid,  and  the  purchaser,  who 
was  the  defendant  in  the  attaclunent,  had  a  right  of  action  against 
the  guardian  to  recover  back  what  he  had  paid  of  the  purchase- 
money,  and,  therefore,  the  guardian  was  liable  as  garnishee.^  So, 
A.  was  building  a  vessel,  and  agreed  with  B.,  C,  and  I).,  that  they 
should  own  three  sixteenths  of  the  vessel,  and  should  be  allowed 
the  amount  of  all  reasonable  bills,  which  they  might  produce 
against  the  vessel,  for  all  such  materials  as  they  should  supply, 
until  she  was  fit  for  sea ;  and  then  that  he  would  convey  to  them 
three  sixteenths  of  the  vessel.  B.  supplied  materials  to  such  an 
amount  as  might  entitle  him  to  be  an  owner  of  one  sixteenth  part 
of  the  vessfcl,  but  C.  and  D.  did  not  furnish  their  proportions. 
The  vessel  was  finished,  and  was  chartered  by  A.,  on  his  own  ac- 
count, to  another  party.  A.  was  summoned  as  garnishee  of  B. ; 
and  it  was  decided,  that,  as  B.  was  not  entitled  to  any  part  of  the 
vessel,  and  A.  was  accountable  to  him  for  the  amount  of  supplies 
lie  furnished,  he  was  chargeable  as  garnishee  to  that  amount.'' 
So,  where  one  contracts  to  purchase  goods,  on  certain  conditions, 
to  be  by  him  performed,  and  receives  the  goods  into  his  possession, 
but  fails  to  perform  the  conditions,  the  vendor  of  the  goods  has  a 
right  of  action  to  recover  the  goods,  and  the  vendee  will  therefore 
be  charged  as  his  garnishee  in  respect  thereof.'*  So,  one  who  con- 
tracts to  sell  personal  property,  in  his  possession,  l)iit  of  wliieh  he 
is  not  the  owner,  to  be  delivered  at  a  future  day,  and  receives  the 
purchase-money,  but  does  not  deliver  the  property,  by  reason  of  its 
having  been  reclaimed  by  the  real  owner,  may  be  held  as  garnishee 
of  the  vendee  for  the  amount  of  the  purchase-money.* 

§  491.  But  it  is  not  always  necessary  that  privity  of  contract 
and  of  interest  should  combine  to  render  the  garnishee  liable. 
Where  there  is  privity  of  contract,  but  not  of  interest,  but  the 
position  of  affairs  between  the  garnishee  and  the  defendant  is  such 
that,  to  exempt  the  garnishee  from  liability,  would  tend  to  an  eva- 
sion of  the  force  and  effect  of  the  law,  and  to  ojien  the  door  for 
fraud,  the  garnishee  will  be  charged,  though  the  privity  of  interest 
do  not  exist.  This  was  held  in  a  case  in  Pennsylvania,  where  in 
an  attachment  against  A.,  the  Bank  of  the  United  States  was  sum- 

1  Williams  r.  Rccd,  5  Pick.  480.  »  Emery  v.  Davis,  1 7  Maine,  2.52. 

2  Davis  r.  Marston.  5  Mass.  199.  *  Edson  i;.  Trask,  22  Vermont,  18. 

[335] 


§  401  WHAT   POSSESSION   WILL   CHARGK   GARNISIIKK,      [cHAP.  XXL 

moned  as  garnislice ;  and  it  appeared  that  after  the  garnishment 
(an  attachment  in  Pennsylvania  having  the  efleet  of  hoMing  ef- 
fects coming  into  tlic  garnishee's  hands  after  he  is  garnished),  tho 
defendant  deposited  in  tho  bank  sundry  sums  of  money,  and  also 
procured  the  l)ank  to  purchase  or  discount  drafts  drawn  l»y  him 
in  his  own  name,  the  proceeds  of  which  were  pa.ssed  to  his  credit. 
The  moneys  thus  passed  to  the  defendant's  credit  were  drawn  out 
on  liis  chocks.  It  aj)peared  that,  tliough  the  accounts  were  kept 
with  the  defendant  in  his  own  name,  he  was  in  fact  tlio  agent  of 
others  in  all  the  transactions,  and  the  jury  found  that  all  the  funds 
•were  d('j)osited  and  drawn  out  hy  him  as  agent  for  others.  Not- 
witiistanding  the  jury  thus  found,  tho  court,  on  grounds  of  puhlic 
policy,  and  for  tho  prevention  of  fraud,  held  tho  bank  liable  as 
garnishee  of  A.^ 

»  Jackson  v.  Bank  U.  S.,  10  Pcnn.  State,  61.  The  views  of  the  court  were  thus 
expri'ssi'd  :  "  The  attachment  is  in  mn,  for  the  puqM)»e  of  coiniH'Ilin};  the  n|>|>earance 
of  the  (lifendant ;  and  if  he,  instead  of  drawinj;  this  money  out  of  the  hank,  had  ap- 
I)enrud  and  entered  hail  to  tiio  action,  tlie  money  would  have  heen  fn-e,  and  the  liank 
nii;:ht  then  have  j.aiil  it  to  iiiin.  Rut  the  >,'arni>hee  chose  to  lie  the  sole  jml^e  and  um- 
pire, and  to  pay  out  tho  money  to  him  on  his  cheeks,  thus  in  fact  nH-o^'nizin>:  his  ri;,'ht 
to  the  |K)ssession  and  control  of  the  money,  and  yet  takinij  the  hazanl  of  dcfeatinj;  the 
ohjeet  of  tlie  altaclinuiit.  The  first  (juestion  that  occurs  is  this  :  couhl  the  hank,  if  tho 
attachment  had  not  i.een  sened,  have  resisted  the  claim  of  the  defemlant  to  the  money 
he  had  de|)f)sited  with  them  ?  They  received  it  and  the  hills  as  his,  enten-d  them  on 
their  books  as  his,  and  were  Iwund,  in  the  ahsencc  of  any  attat  hment,  to  have  paid  tho 
funds  to  him.  How,  thru,  were  they  jdaecd  in  any  better  situation  by  the  service  of  the 
attachment  ?  The  attachinj;  creditor  stands  in  'the  jdaec  of  the  defemlant.  If  the  bank 
could  not  allej,'c  as  a;:ainst  the  defendant,  that  the  funds  were  not  his,  neither  can  they 
alle;,'e  a;;aiiist  the  attaehin-  creditor  that  they  are  not  the  defendant's,  anci  yet  turn 
round  and  pay  the  money  to  the  ilefendant,  to  enable  hin»  to  defeat  his  cn-di'tor.  In 
Scrf!:cantou  Attachment,  p.  94,  it  is  said  that  the  piniishee  may  plead  everythin;;  to 
the  scire  facias  which  he  could  j.lead  a;,'ainst  the  defendant ;  and  if  the  bank  could  have 
pleaded  atrainst  the  defendant  that  the  money  ami  the  pr«j<lucts  of  the  bills  were  not  his, 
why  did  they  pay  them  to  him  after  beinp  warned  by  attachment  ?  The  law  counte- 
nances not  those  operations  by  which  its  le;:ititnatc  force  and  effect  may  be  evaded. 
Thus,  in  the  case  of  Silverwood  v.  Bellas,  8  Watts,  420,  it  was  re.solvcd  that  Silver- 
wood,  the  pimishee,  who  had  received  money  in  trust  to  deliver  it  over  to  the  defendant, 
was  liable  because  he  did  lielivcr  it  over.  Here  it  cannot  l)c  tjainsaid  that  the  bank  was 
bound  to  deliver  over  the  money  to  the  defendant  in  the  absence  of  the  attachment. 

"Tiie  ownership  of  the  defendant  is  evidenced  and  maintained  by  the  customarv  evi- 
dence of  ri;;ht,  that  is,  the  deposit  in  the  bank  in  his  own  name,  the  books  of  the  bank, 
the  drawim,'  of  bills  and  checks  in  his  own  name.  Under  these  circumstances  it  is 
against  pulilic  policy  that  the  bank  should  be  permitteil  to  alle;:e  that  the  books  were 
false  for  the  puqrose  of  defeating  the  creditor,  and  yet  true  for  the  purjiose  of  paving 

over  the  funds  to  the  defendant We  fear  it  would  open  too  wide  a  door  for  the 

infliction  of  fraud,  if  such  practices  were  tolerated.  An  individual,  made  out  to  be  in- 
solvent, may  have  S  100.000,  nay,  twice  that  amount,  in  a  bank,  entered  on  its  books  in 
his  own  name,  his  checks  accepted  and  paid.  What  amount  of  credit  may  he  nrjt  ob- 
tain upon  this  lure  held  out  to  the  community  ?  If  the  cashier,  and  the  partv  ciainiin " 
the  money,  or  anv  other  persons,  are  permitted  to  prove  that  the  entries  are  untrue 
[336] 


CRAP.  XXI.]      WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.  §  191 

that  the  depositor  has  not  a  cent  in  the  bank,  the  injury  may  be  deep  and  grievons  to 
credit,  and  the  ^jource  of  severe  loss  to  those  who  have  put  faith  in  the  integrity  and 

uprightness  of  banking  institutions The  garnishee  after  having  paid  the  money 

to  the  defendant,  and  by  its  own  books,  papers,  and  records,  given  the  evidence  that  it 
was  his,  shall  not  be  permitted  to  allege  the  contrary  for  the  purpose  of  protecting 
itself  in  a  wrongful  act.  The  duty  of  the  garnishee  was,  having  received  the  money 
and  bills  as  the  money  and  bills  of  the  defendant  himself,  to  have  retained  them  until 

liberated  by  due  c-ourse  of  law Even  suj.jkjsc  that  the  defendant  got  this  money 

from  many  j«rsons,  and  used  it  as  his  own,  he  became  the  debtor  of  those  persons,  and 
tliey  lost  their  grip  on  the  fund.  And  by  mingling  this  fund  with  the  products  of  the 
bills,  domestic  and  foreign,  and  using  the  whole  as  his  own,  ah  libitum,  and  depositing 
it  as  such  in  the  bank,  this  deposit  in  the  bank,  so  made  and  evidenced,  created  a  dcbl 
or  duty  from  the  bank  to  the  defendant,  and  not  any  specific  or  distinct  debt  or  duty 
to  the  parties  whose  money  it  is  alleged  it  in  fact  was.  The  debt  or  duty  was  to  the 
defendant  in  mass ;  and  by  paying  it  to  him  in  the  face  of  an  attachment  and  garnish- 
ment, the  bank  became  liable  to  the  plaintiff  in  attachment." 

^  [337] 


3  493  CAPACITY   IN   WmCU   GARXISHEK  [CHAP.  XJOL 


CHAPTER    XXII. 

THE  garnishee's   LIABILITY,   AS   AFFECTED   BY  THE   CAPACITY  IN 
WHICH    HE    HOLDS   THE    DEKKNDAST's    PKnPKUTV. 

§  492.  The  frequont  occasions  when  money  or  other  property 
is  in  the  hands  of  ofFieers  of  the  law,  and  of  persons  acting  under 
legal  authority,  would  naturally  give  rise  to  efforts  to  reach  it  hj 
attachment  against  the  individuals  claiming  it,  or  to  whom  it 
might  he  sujjposod  to  helong.  We  consecjuently  find  that  such 
efforts  have  l)een  made,  in  reference  to  almost  all  descrij)tions  of 
persons  holding  property  or  money  under  official  or  legal  authority. 
Administrators,  executors,  and  guardians,  ministerial,  judicial,  and 
disbursing  officers,  and  municipal  corjxjrations,  have  all,  at  times, 
been  subjected  to  garnishment,  and  numerous  adjudications  as  to 
their  liability  have  been  the  result.  We  will  review  the  decisions 
which  have  been  made. 

§  493.  In  Massachusetts,  at  an  early  day,  the  principle  was 
established,  that  a  public  officer  who  has  money  in  his  hands,  to 
satisfy  a  demand  which  one  has  upon  him  merely  as  a  puldic 
officer,  cannot,  for  this  cause,  be  adjudged  a  garnishee.^  The 
case  was  that  of  a  county  treasurer,  who  disclosed  in  his  answer 
that  he  had  a  certain  sum  of  money  in  his  possession,  officially, 
which  was  due  to  the  defendant  for  services  as  a  juror,  and  which 
he  was  by  law  bound  to  pay  to  the  defendant.  The  court  decided 
against  the  garnishment  on  two  grounds:  one,  having  relation  to 
the  peculiar  statute  of  the  State,  the  otiier  as  stated  above ;  but  it 
is  evident  that,  had  the  former  ground  not  existed,  the  latter  would 
have  been  considered  sufficient. 

The  same  principle  was  recognized  in  Connecticut.  There  the 
State's  attorney  commenced  a  suit  in  the  name  of  the  county 
treasurer,  on  a  forfeited  bail-bond,  taken  in-a  criminal  proceeding ; 
and  during  the  pendency  of  the  suit,  the  general  assembly,  on  the 
application  of  the  person  suffering  l)y  the  offence  complained  of, 
directed  the  money  which  should  be  recovered  on  such  bond  to  be 

1  Chcalv  r.  Brewer,  7  Mass.  259.     See  Bulkley  i;.  Eckert,  3  Penn.  State,  368. 
[338] 


CHAP.  XXII.]  HOLDS  DEFENDANT'S   PROPERTY.  §  496 

paid  over  to  liim.  The  attorney  afterwards  received  the  money 
due  on  the  bond  ;  and  while  it  was  in  his  hands,  before  any 
demand  upon  him,  a  creditor  of  the  person  to  whom  the  general 
assembly  hud  directed  the  money  to  be  paid  caused  the  attorney 
to  be  garnished.  It  was  held,  that  the  attorney  having  received 
and  held  the  money  in  his  official  cajjacity,  as  agent  of  the  public, 
the  garni.'^hment  was  not  sustainable.^ 

§  4'J4.  The  Supreme  Court  of  Massachusetts  took  a  s^ep  further, 
and  announced  the  broader  principle,  that  no  person  deriving  his 
authority  from  the  law,  and  obliged  to  execute  it  according  to  the 
rules  of  law,  can  be  charged  as  garnishee  in  respect  of  any  money 
or  proi^Tty  held  by  him  in  virtue  of  that  authority .^  This  de- 
cision was  elicited  by  the  garnishment  of  an  administrator,  and 
was  based  upon  the  principle  stated,  without  reference  to  the 
statute  under  wiiich  the  process  issued.  But  this  immunity  ex- 
tends only  to  the  person  liimself,  thus  holding  money  or  prop- 
erty in  virtue  of  such  authority.  Therefore,  one  who  had  collected 
for  A.  B.,  e.vecutor  of  a  deceased  person,  the  amount  of  a  promis- 
sory note  made  payable  to  A.  B.,  as  executor^  was  charged  as 
garnishee  in  a  suit  against  A.  B.  in  his  private  capacity.^ 

§  49o.  Having  stated  the  general  rule,  we  proceed  to  examine 
its  ajiplieatiun  to  the  various  descriptions  of  persons  holding  money 
or  property  in  an  oflicial  or  legal  capacity. 

§  49G.  Admtnistrators.  In  the  case  just  cited,  the  garnishee 
answered  that  he  had  no  goods,  effects,  or  credits  of  the  defendant 
in  his  possession,  except  as  he  was  administrator  of  P.  B.,  de- 
ceased ;  that  previous  to  the  death  of  the  said  P.  B.,  the  defendant 
had  commenced  a  suit  against  P.  B.,  to  recover  the  value  of 
certain  hides,  wliich  suit  was  pending  at  the  time  of  the  gar- 
nishee's answer.  The  court,  without  adverting  to  the  facts  of  the 
case,  or,  as  before  stated,  to  the  terms  of  the  statute,  laid  down 
the  comprehensive  rule  above  indicated,  merely  adding,  "  We 
have  determined  this  in  the  case  of  public  officers,  and  the  reason 
of  those  decisions  applies  with  equal  force  to  the  case  of  an 
administrator." 

>  Stillman  v.  Isham,  11  Conn.  124. 

■■'  Brook*  V.  Cook,  8  Mass.  246  ;  Colby  v.  Coates,  6  Cushing,  558;  Thayer  v.  Tyler,  5 
Allen,  94.     See  Mock  r.  Kinj;,  15  Alubuma,  66. 
'  Cohurn  c.  Ansart,  3  Muis.  .319 

[339] 


§  497  CAPACITY  IN  wmcn  garnishee  [chai-.  xxii. 

Tlie  Supremo  Court  of  Maine  recognized  and  enforced  tlie  same 
principle,  in  a  case  where  the  intestate  was  clearly  indchted  to  the 
defendant,  and  the  administrator  had  money  in  his  hands  ready  to 
pay  the  deht.^ 

In  Delaware,  neither  an,  administrator,  nor  a  dehtor  of  an  estate, 
can  he  summoned  as  garnishee.^ 

In  Arkansas,  administrators  arc  considered  exempt  from  garnish- 
ment, even  after  a  demand  has  heen  allowed  against  the  estate,  in 
favor  of  ilui  defendant,  and  an  order  made  hy  the  prol)ato  court 
upon  the  administrator  to  pay  it.'  And  in  North  Carolina,  it 
was  decided  that  an  administrator  cannot  be  required  to  answer, 
as  garnishee,  whether  his  intestate  was  indebted  to  the  defendant.* 

In  Aluliama,  however,  it  seems  to  i)0  conceded  that  an  adminis- 
trator may  be  charged  as  garnishee  in  rcvspect  of  a  debt  due  from 
his  intestate  to  the  defendant,'  but  not  unless  he  is  summoned  in 
Lis  representative  capacity.® 

§  407.  In  New  Hampshire,  in  Delaware,  and  in  ^fissouri,  how- 
ever, while  the  principle  announced  in  Massachusetts  was  recog- 
nized as  sound,  it  was  considered  to  be  inapplical)le,  where  the 
administrator  had  been,  by  the  proper  tril)unal,  adjudged  and 
ordered  to  j)ay  a  certain  sum  to  a  creditor  of  the  estate  ;  and  in 
such  case  the  administrator  was  charged  as  garnishee  of  the  party 
to  whom  the  money  was  ordered  to  be  paid.^  The  reason  of  tliis 
exception  was  given  by  the  Superior  Court  of  New  Hampshire, 
and  adopted  by  the  Supreme  Court  of  Missouri.  In  the  language 
of  the  former,  "  an  administrator,  till  he  is  personally  liable  to  an 
action  in  consequence  of  his  private  promise,  the  settlement  of  the 
estate,  some  decree  against  him,  or  other  cause,  cannot  be  liable 
to  a  trustee  process.  Because,  till  some  such  event,  the  principal 
has  no  ground  of  action  against  him  in  his  private  capacity  ;  and 
he  is  bound  to  account  otherwise  for  the  funds  in  his  hands.  The 
suit  against  him,  till  such  an  event,  is  against  him  in  his  repre- 
sentative  capacity,  and   the  execution  must  issue  to   be   levied 

1  "Waite  I'.  Osborne,  11  Maine,  183. 

'  Marvel  v.  Houston,  2  Harrington,  349. 

8  Thorn  v.  Woodruff,  5  Arkansas,  5.5;  Fowler  v.  McClelland,  ITiid.  188. 

*  Welch  V.  Gurley,  2  Haywood  (N.  C),  334;  Gee  v.  Warwick,  Ibid.  354. 

*  Terry  v.  Lindsay,  3  Stewart  &  Porter,  317  ;  Tillinghast  v.  Johnson,  5  Alabama,  514. 

*  Tillin<rhast  v.  Johnson,  5  Alabama,  514. 

'  Adams  v.  Barrett,  2  New  Hamp.  374 ;  Fitchett  v.  Dolbee,  3  Ilarringfon,  267 ;  Cur- 
ling V.  Hvde,  10  Missouri,  374;  Richards  v.  Griggs,  16  Ibid.  416. 
[340] 


CHAP.  XXII.]  HOLDS   DEFENDANT'S   PROPEBTY.  §  498 

de  bonis  testatoris  and  not  de  bonis  propriis.  But  in  the  present 
case,  the  trustee  was  liable  in  his  private  capacity  to  the  defendant 
for  the  dividend.  The  debt  had  been  liquidated,  and  a  decree  of 
payment  passed.  The  debt  was  also  due  immediately.'  Execution 
for  it  would  run  against  his  own  goods ;  and  the  trustee  process 
would  introduce  neither  delay  nor  embarrassment  in  the  final 
settlement  of  the  estate."  ^ 

In  Vermont,  where  an  administrator  had  been  decreed  by  the 
probate  court  to  deliver  property  to  a  female  distributee  of  the 
estate,  and  was  afterwards  summoned  as  garnishee  of  the  husband 
of  the  distributee,  the  court  admitted  the  general  principle  of 
the  exemption  of  an  administrator  from  garnishment ;  but  in 
view  of  the  jK-'Culiar  statute  of  that  State,  and  of  the  fact  that  a 
decree  of  distribution  had  passed,  charged  the  administrator  as 
garnishee.* 

§  498.  In  Pennsylvania,  under  a  statute  which  in  terms  author- 
ized the  garnishment  of  administrators,  it  was  held,  that  a  dis- 
triliutive  sliarc  of  personal  estate  could  not  be  attached,  before  the 
udiniiii>trator  had  settled  his  account,  so  as  to  show  what  is  due 
from  him  to  tbe  distributee.^  And  in  Massachusetts,  where  a 
similar  statute  now  exists,  it  was  decided  that  an  administrator 
cannot  l)e  charged  under  a  writ  served  on  liim  between  tlie  time 
when  administration  is  decreed  to  him,  and  that  of  the  filing 
and  approval  of  his  bond  and  the  delivery  of  letters  to  him.* 
And  in  Maine,  under  a  statute  authorizing  "  any  debt  or  legacy, 
due  from  an  executor  or  administrator,  and  any  goods,  effects, 
and  credits  in  his  hands,  as  such,"  to  be  attached  by  garnishment, 
it  was  decided  that  an  administrator  could  not  be  charged  as 
garnishee,  in  respect  of  a  negotiable  promissory  note  of  his  in- 
testate, held  by  the  defendant,  where  the  same  statute  forbids 

1  Adams  r.  Barrett,  2  New  Ilamp.  374. 

*  Parks  r.  Hmlley.  9  Virmoiit,  320. 

»  Bank  of  Chester  v.  UaUton,  7  Penn.  State,  492  ;  McCrearr  v.  Topper,  10  Ihid.  419  ; 
Ileas  r.  Sliorl),  7  I»)i<I.  231.  In  Ilartle  v.  Lon;;,  5  Penn.  State,  491,  an  administrator  was 
j.'anii-ihed,  wlien  there  w:\s  no  law  autliorizin^;  such  a  pnx-eeding.  Eleven  years  after- 
wards such  a  law  was  enaeted,  and  the  plaintiff  then  issued  a  scire  facias  to  suljject  ia 
the  hands  of  the  administrator  eertain  moneys  which  ha<l  then,  by  the  death  of  the 
u-idow,  become  payable  to  the  defendant ;  but  the  court  held,  that  the  law  could  have 
no  retrospe<tivc  o|>eration,  and  that  as  the  moneys  were  not,  liefore  its  passage,  liable 
to  the  attachment,  no  procee<linp»  bjised  on  the  original  attachment  could  reach  it. 

*  Davia  v.  Davis,  2  Cushing,  111. 

[341] 


§  409  CAPACTTY   IN   WHICH  GARNISHEE  [CHAl'.  XXIL 

the  garnishment  of  a  person  in  respect  of  a  negotiable  note  made 
by  him.^ 

§  499.  Executors.  It  is  well  settled  in  England  and  the  United 
Status,  as  a  general  proposition,  that  an  executor  cannot  l>e  held 
as  garnishee,  in  respect  of  a  pecuniary  legacy  bequeathed  by  his 
testator.2  ^p,j  this,  however,  an  exception  would  be  made,  as  ia 
the  case  of  administrators,  where  the  executor  has  been  ordered 
by  the  prol»ate  court  to  i)ay  the  amount  to  the  legatee.^ 

The  earliest  American  case  on  this  sul»ject,  with  which  we  are 
acquainted,  came  up  in  Massacliusetts,  where  it  was  held,  that  a 
pecuniary  legacy  in  the  hands  of  an  executor  is  not  ''  goods, 
effects,  or  credits  "  ;  and  that  the  same  principles  wliich  exempt 
a  pul)lic  officer  from  garnishment,  apply  with  equal  force  to  the 
case  of  an  executor  ;  and  this  without  reference  to  whether  the 
garnisiunent  took  place  before  or  after  the  probate  of  the  will.'* 

The  same  point  came  up  in  a  similar  case  in  Connecticut,  where 
the  garnishment  took  place  aftrr  the  probate  of  the  will,  and  the 
acceptance  V)y  the  executor  of  his  appointment.  The  court  below 
instructed  the  jury  that  the  executor  was  in  contemplati(jn  of  law 
the  del)tor  of  the  defendant,  the  legatee,  and  liable'  to  pay  the 
plaintiff's  claim  out  of  his  own  estate.  The  Supreme  Court,  in 
reversing  the  judgment,  use  the  following  language  :  "  An  exec- 
utor cannot  be  considered  as  the  debtor  of  a  legatee.  Tiie  claim 
is  against  the  testator  or  his  estate ;  and  the  executor  is  merely 
the  representative  of  the  deceased.  There  cannot  be  a  debt  duo 
from  the  executor  within  the  meaning  of  the  statute.  Nor  can  a 
person,  like  an  executor,  deriving  his  authority  from  the  law, 
and  bound  to  perform  it  according  to  the  rules  prescribed  by 
law,  be  considered  as  a  trustee,  agent,  attorney,  or  factor  within 

1  Commcrcinl  Bnnk  v.  NofiUy,  ^9  Maine,  402. 

2  Priv.  Lond.  267  ;  Toller  on  K.xccutors  4th  Am.  Ed.  478;  Barnes  r.  Treat,  7  Mass. 
271  ;  Winchell  v.  Allen.  1  Conn.  385  ;  Beckwith  v.  Baxter,  3  New  Hamp.  67  ;  Shcwcll 
V.  Keen,  2  Wharton,  332;  Barnett  v.  Weaver,  Ihid.  418;  Picquet  v.  Swan,  4  Mason, 
443.  In  opposition  to  the  doctrine  stated  in  the  text,  the  Supreme  Court  of  Indiana 
stands  alone,  in  holding  an  exeeutor  charjreable  as  garnishee,  in  respect  of  an  un.isccr- 
tained  distributive  share  of  an  heir  of  a  decedent.  The  statute  under  which  this  deci- 
sion was  given  provided  that  "  the  lands,  tenements,  hereditaments,  goods,  chattels, 
rights,  credits,  moneys,  and  effects,  of  any  and  all  persons  not  residents  of  this  State, 
arl"  and  shall  he  liable  for  the  payment  of  debts  and  other  demands,  by  suit  to  be  insti- 
tuted by  the  process  of  foreign  attachment."     Stratton  v.  Ham,  8  Indiana,  84. 

8  Fitchett  V.  Dolbee,  3  Harrington,  267. 
«  Barnes  v.  Treat,  7  Mass.  271. 
[342] 


CHAP.  XXn.]  HOLDS   DEFENDANT'S   PROPERTY.  §  499 

the  statute  ;  and  this  for  the  best  of  reasons.  In  the  common 
case  of  agents,  trustees,  and  factors,  the  creditor  can  easily  place 
himself  in  the  shoes  of  the  absconding  debtor,  and  prosecute  his 
claim  without  inconvenience  to  the  garnishee.  But  such  would 
not  be  the  case  with  an  executor.  It  would  not  only  embarrass 
and  delay  the  settlement  of  estates,  but  would  often  draw  them 
from  courts  of  probate,  where  they  ought  to  be  settled,  before 
the  courts  of  common  law,  who  would  have  no  power  to  adjust 
and  settle  his  accounts.  Such  an  interference  might  produce 
much  inconvenience,  and  prevent  the  executor  from  executing  his 
ofiice  as  the  law  directs."  ^ 

This  subj(;ct  received  an  elaborate  and  able  treatment  by  the 
Supreme  Court  of  Pennsylvania,  in  a  case  where  the  amount 
involved  was  large,  and  the  whole  subject  was  fully  investigated 
by  eminent  counsel.  The  question  presented  was,  in  efTect,  the 
game  as  in  the  cases  which  arose  in  Massachusetts  and  Connecti- 
cut, and  the  court,  in  an  elaborate  opinion,  decided  that  an  ex- 
ecutor could  not  be  charged  in  respect  of  a  legacy  due  to  the 
defendant.^ 

»  WincheU  r.  Alkii,  1  Conn.  385. 

«  Shew.ll  c.  Keen,  2  Wlmrton,  .%32.  The  opinion  of  the  court  was  in  the  following 
torms :  "  In  every  case  in  which  a  detcrminiition  has  taken  place  on  the  question 
whether  a  foreijjn  attiichmcnt  wouM  lie  fur  a  le};acy,  it  has  been  hehl  that  it  would  not; 
and  .some  of  these  ca-ses  have  occurred  un.ler  statutory  re^'ulations  on  the  sul.ject,  very 
similar  tu  our  own.  Various  reasons  liave  i)€cn  ^'ven  for  coinin;.'  to  this  result ;  and  a 
little  reflection  <-onvinces  us  that  the  proceedings  by  furci^jn  attachment  cannot  be 
applied  to  the  case  of  a  lepicy,  wilhoul  jrreat  inconvenience  and  manifest  inconj:ruity. 

••  A  jK^'cuniary  le;;acy  is  not  a  debt.  It  is  a  sum  of  money,  jiayable  by  the  exceutor 
or  administrator  out  of  the  estate  of  the  decedent,  if  sufficient  as^^cts  remain  in  his 
hands,  after  discharpinp  the  debts  of  the  decca-sed,  and  other  responsibilities,  and  pro- 
vided tlie  let,'atcc  j.rcviously  comi.lies  with  certain  requisites  prescriljed  by  the  acts  of 
a.«s<-mbly.  Generally  it  is  not  recoverable  at  law,  but  is  subjected  to  chancery  juris- 
diction, which  treats"  the  executor  as  tmstec  of  the  estate  for  the  Ijcnefit  of  those  in- 
U-n.'sted  in  it.  In  Pennsylvania,  a  let:iu;y  is  recoverable  in  a  common  law  court,  by  the 
act  of  1772,  there  being  no  court  of  chancery ;  but  that  act  gives  i>cculiar  powers  to 
the  eonrt ;  and  the  executor's  duty  is  still  in  nature  of  a  trust,  in  relation  to  legacies ; 
and  thev  are  payable  only  on  the  j>erformance  of  certain  conditions  by  the  legatee. 
He  must  make  li  i)revious  demand,  and  must  tender  or  file  a  refun<ling  l)ond,  not  so 
much  for  the  prr)tection  of  the  executor,  as  for  the  benefit  of  creditors  who  may  sub- 
Boquentlv  esta!.li>h  claims  against  the  estate.  If  a  foreign  attachment  be  penuitted, 
by  whicii  the  assets  in  the  hands  of  the  executor  are  to  be  eventually  approj.riatcd  to 
the  attaching  creditor,  the  legacy  may  be  recoverable  without  demand,  and  without 
filing  a  refiinding  bond.  For  the  legatee  would  not  be  ex|K"cted  to  give  such  bond, 
and  there  exists  no  power  in  the  court  to  compel  the  attaching  creditor  to  do  it,  or  to 
authorize  the  executor  to  receive  it  from  him.  If  the  refunding  bond  could  be  given, 
an  extraordinary  result  might  follow.  The  plaintiff,  before  the  payment  of  the  money 
by  the  garnishee.  alw«ys  gives  security  to  restore  the  amount  received,  if  within  a  year 
and  a  dav  the  defendant  should  appear  to  disprove  the  debt.     If,  within  the  yrat 

[3-43"l 


§  501  CAPACITY   IN   Wmcil   GARXISHEE  [cHAP.  XXII. 

§  500.  "Wljllc,  liowovcr,  an  executor  cannot  bo  chargt'd  as 
garnishee  in  respect  of  a  legacy  bequeatlicd  by  liis  testator,  it  docs 
not  follow  tliat  in  no  case  can  a  legacy  be  subjected  to  attachment 
against  the  legatee  ;  for,  if  land  bo  devised  with  a  legacy  charged 
upon  it,  tlie  devisee  will  l)e  held  as  garnisheo  of  the  legatee,  in 
resj)ect  of  the  legacy.^ 

§  501.  In  ^fassacliusetts,  a  statute  was  enacted,  providing  that 
"  any  debt  or  legacy  due  from  an  executor  or  administrator,  and 
any  other  goods,  ofTccts,  and  credits,  in  the  hands  of  an  executor 
or  administrator,  as  such,  may  bo  attached  in  his  hands  by  the 
process  of  foreign  attachment."  *    Under  this  statute  it  has  been 

and  a  iliw,  the  difcndant  issjic  his  s»-ire  /arias  ad  dispnJtantlum  rffhitum,  and  mic- 
ccods,  and  movcrt  hack  his  liffary,  he  tlicn  Rets  it  without  civinR  any  rvfiindinc  lH>nd ; 
aqd  the  |)hiintifr  may  he  coinjulled,  in  the  event  of  new  delits  a;;ainst  the  estate  Injinff 
afterwaiils  estahhshed,  to  jmy  the  amount  a  seiond  time  on  his  refimdiiix  l)ond.  Snch 
conse(iuences  evinre  timt  tlie  process  hy  fon>ipn  nttarhment  cannot  be  harmonized  with 
the  acts  of  asseinhiy  coneeminj,'  tlic  recovery  of  letjacies. 

"  Anotiier  circumstance  of  weight  is  tliat  an  cxiriitor  or  administrator  is,  to  a  certain 
extent,  an  officer  of  the  hiw,  clothed  with  a  tnist  to  l>e  performed  under  prescrilK?d 
remiliitions.  It  wouM  tend  to  distract  and  cmharritss  those  otiicers.  if,  in  addition  to 
the  ordinary  duties  which  the  hiw  imposes,  of  themselves  often  multiplied,  arduous,  and 
rcspoiisilile,  they  were  drawn  into  conllicts  created  hy  the  interi)osition  of  cn-ditors  of 
Iej,'atces,  anil  com|K-lIed  to  withhold  payment  of  legacies  without  suit ;  to  susjicnd 
indctinitely  the  settlement  of  estates ;  to  attend,  jHThaps,  to  numerous  rival  attach- 
mcnt-s;  to  answer  interro;,'atories  on  oath,  and  to  he  put  to  trouble  and  exjK-nsc  for 
the  benefit  of  third  j>e"rsons,  no  way  connected  with  tlie  estate,  nor  witliin  the  duties 
of  their  trust.  It  has  l)cen  decided  that  money  in  the  hands  of  a  prtjthonotary  or 
shcrirt"  cannot  be  intercepted  by  a  creditor  of  the  party  entitled  to  it;  but  it  must  bo 
paid  over  to  himself  only.  The  case  of  an  executor  or  administrator  is  analo;:ou»  to 
that  of  a  shcrilV  or  prothonotary.  He  has  the  funds  in  his  hamls  a.s  an  officer  or 
trustee  authorized  by  law;  and  if  a  new  j)arty  were  allowed  to  levy  on  it  by  attach- 
ment, there  would  be  no  end  of  disputes  and  lawsuits  ;  and  no  business  could  Ix;  certain 
of  ever  Mw^  brouj,'ht  to  a  dose  within  a  reasonable  time.  It  is  of  preat  importance 
to  the  interests  of  heirs,  creditors,  and  lepatees,  that  the  affiiirs  of  a  decedent's  estate 
be  kept  as  simple  and  distinct  as  iK>ssibIe,  that  its  concerns  Ik;  speedily  closed  and  the 
estate  atljusted.  It  is  moreover  settleil  that  an  executor  cannot  be  sued  as  defendant, 
in  an  attachment  by  a  creditor  of  tlie  testator,  and  the  poo<ls  of  the  testator  attached 
to  recover  the  debt.  The  reason  is,  that  the  estate  of  the  testator  oufjht  to  come  into 
the  hands  of  the  executor,  tliat  he  may  administer  it  aecordint;  to  law;  and  pav  the 
debts  if  the  assets  suffice  ;  and  they  ow^ht  not  to  be  stopj)ed,  and  the  executor  sulijected 
to  new  responsibilities  by  proceedin{,'s  in  attachment.  These  reiusons  ajjply  with  equal 
force  to  the  attempt  to  make  an  executor  garnishee,  for  the  purpose  of  |)ayin;,'  out  of 
the  assets  in  his  hands  the  debt  due  to  a  creditor  of  a  lc','atcc.  These  funds  must 
travel  only  in  the  path  pointed  out  by  the  laws  relating  to  decedents'  estates,  in  their 
various  branches,  and  cannot  be  diverted  out  of  that  path  without  intcrferin;;  with 
salutary  rci^ulations,  and  violatinfr  some  of  the  most  important  provisions  of  the  acts 
of  assemblv."  See  Barnctt  v.  Weaver,  2  "Wharton,  418;  Young  v.  Youn"-  2  Hill 
(S.  C),  42.=>. 

1  Piper  V.  Piper,  2  New  Hamp.  439  ;  Woodward  t'.  Woodward,  4  Halsted,  115. 

*  Revised  Statutes  of  Massachusetts,  c.  109,  §  62. 
[344] 


CHAP.  XXII.]  HOLDS   DEFENDANT'S   PROPERTY.  §  502 

held,  that  a  legacy  in  the  hands  of  an  executor  is  not  such  a 
contingent  liability  as  will  prevent  its  being  attached,  because  it 
can  be  a^sccrtained  by  the  settlement  of  the  estate  whether  there 
are  assets  sufficient  for  the  payment ;  and  when  necessary,  the 
court  will  continue  the  case  until  it  can  be  seen  whether  the 
assets  are  sufficient  for  that  purpose  ;  ^  or,  if  there  be  not  person- 
alty sufficient  for  the  payment,  until  license  can  be  obtained  to 
sell  real  estate  for  that  purpose.^  And  if  the  executor,  after 
being  sunnnoned  as  garnishee,  pay  over  the  legacy  to  the  legatee, 
such  payment  will  not  protect  him,  and  will  be  regarded  as  such 
an  acknowledgment  that  there  were  assets  in  his  hands,  that  he 
will  not  be  entitled  to  any  continuance  thereafter,  for  the  purpose 
of  having  that  fact  determined  by  the  settlement  of  the  estate.^ 
In  all  such  cases  the  attaching  plaintiff  must,  if  required  by  the 
executor,  give  bond  to  refund  the  money,  if  the  same  should  be 
needed  to  satisfy  any  demands  afterwards  recovered  against  the 
estate,  and  to  indemnify  the  executor.*  But  there  docs  not  seem 
to  be  a  disposition  in  the  courts  of  that  State  to  extend  the  opera- 
tion of  tlie  statute  in  question  beyond  its  clear  intendment ;  for 
they  refused  to  charge  an  executor  as  garnishee  of  one  to  whose 
daughter  a  legacy  was  left,  and  wliich  descended  to  him  upon 
the  death  of  his  daughter  ;  because,  before  any  proceeding  could 
be  instituted  agahist  the  executor  for  the  legacy,  administration 
on  her  estate  was  necessary,  and  the  legacy  would  be  assets  in  the 
hands  of  her  administrator.^ 

§  502.  Guardians.  Persons  acting  as  guardians  of  infants  arc 
considered  to  stand  in  the  same  position  as  administrators  and 
executors,  and  to  come  within  the  general  principle  before  stated, 
and,  tberefore,  not  lialde  as  garnisiiees  in  respect  of  property  of 
their  wards  in  their  possession,  as  guardians.*  So,  in  New  Hami> 
shire,  with  regard  to  a  guardian  of  an  insane  person,  at  least  until 
his  accounts  have  been  adjusted  by  the  probate  court,  and  a 
balance  found  in  his  hands.' 

1  Holbrook  v.  Waters,  19  Pick.  354 ;  Wheeler  v.  Bowen,  20  Ibid.  563. 
«  Cmly  V.  Conicy,  10  Metcalf,  459. 
»  Hour  V.  Marshall,  2  Gray,  251. 
*  Caily  i:  Comoy,  10  Metcalf,  459. 
'  Stills  V.  Harmon,  7  Cushin;;,  406. 

0  Gassett  i-.  Gnnit,  4  Metcalf,  4S6  ;  Hansen  v.  Butler,  48  Maine,  81  ;  rorry  v.  Thorn- 
ton, 7  Rhode  Island,  15  ;  Godb«jld  i-.  Bass,  12  Kichardson,  202. 
'  Davis  r.  Drew,  6  New  Hamp.  399. 

[3401 


§  505  CAPACITY   IN   WinCH   GARNISOEE  [CHAI'.  XXIL 

§  503.  Sheriffs.  Tho  same  considerations  which  forbid  tlio 
garnishment  of  executors,  administrators,  and  guardians,  require 
that  all  ministerial  olhcers,  having  official  possession  of  property 
or  money,  should  be  exempt  from  that  proceeding.  We  accord- 
ingly find  that,  almost  without  exception,  the  courts  in  Kngland  ^ 
and  this  country  have  taken  decided  ground  against  all  attempts  to 
reach,  by  garnishment,  money  in  the  hands  of  sheriils,  received 
and  held  by  them  in  their  official  capacity. 

§504.  This  subject  has  been  presented  in  threo  aspects :  1.  By 
the  levy  of  an  execution  by  an  officer  on  money  in  his  hands  col- 
lected on  execution;  2.  By  the  levy  of  an  attachment  on  such 
money ;  and  3.  By  the  garnishment  of  the  sheritT  in  respect 
thereof.  The  object  aimed  at  in  each  of  these  cases  being  the 
same,  the  general  principles  governing  each  are  equally  apj)licablo 
to  all,  and  cannot  be  aftected  by  the  dilference  in  the  modes  of 
attaining  the  same  result.  Whether  the  proceeding  be  by  actual 
levy  or  by  garnishment,  cannot  change  the  aspecl  of  the  question, 
since  the  latter  is  in  elTect  as  much  an  attachment  as  the  former. 
Ilence,  there  is  no  just  ground  for  the  distinction  which  has  been 
made  in  favor  of  allowing  the  money  to  be  reached  by  garnishment 
as  a  rii/ht  or  credit  in  the  slierifT's  hands,  though  held  not  to  bo 
attachable  by  levy.  Obviously,  if  its  abstraction  from  his  custody 
by  levy  be  inadmissible,  the  law  will  not  tolerate  its  abstraction 
by  a  circuitous  and  less  direct  method.  We  shall,  therefore,  in 
the  consideration  of  the  subject,  use  indiscriminately  the  decisions 
relating  to  the  three  modes  of  proceeding  above  referred  to. 

§  505.  The  first  and  leading  case  in  this  country,  bearing  on 
this  subject,  was  decided  by  the  Supreme  Court  of  the  United 
States.  A  sheriff  having  collected  money  on  execution,  levied 
thereon  an  execution  which  he  held  against  the  person  for  whom 
the  money  was  collected.  Two  questions  were  made:  1.  Can  an 
execiUion  be  levied  on  money  ?  and  2.  Can  it  be  levied  on  money 
in  the  hands  of  the  officer  ?  The  court  decided  the  former  affirm- 
atively, and  held  the  following  language  in  reference  to  the  latter : 
"  The  general  rule  of  law  is,  that  all  chattels,  the  property  of  the 
debtor,  may  be  taken  in  execution,  and  whenever  an  officer  has  it 

1  1  Leonard,  30,  264 ;  Priv,  Londini,  265 ;  Comyns's  Digest,  Attachment,  D  ;  Bac. 
Ab.,  Customs  of  London,  H. 
[346] 


CHAP.  XXn.]  HOLDS   DEFENDANT'S  PROPERTY.  §  505 

ill  his  power  to  satisfy  an  execution  in  his  hands,  it  is  his  duty  to 
do  so,  and  if  he  omits  to  perforin  his  duty,  he  must  be  accountable 
to  those  who  may  be  injured  by  his  omission.  But  has  money,  not 
yet  paid  to  the  creditor,  become  his  property  ?  That  is,  although 
•his  title  to  the  sum  levied  may  be  complete,  has  he  the  actual  legal 
ownership  of  the  specific  pieces  of  coin  which  the  officer  may  have 
received  ?  On  principle  the  court  conceives  that  he  has  not  this 
ownership.  The  judgment  to  be  satisfied  is  for  a  certain  sum,  not 
for  the  specific  pieces  which  constitute  that  sum,  and  the  claim  of 
the  creditor  on  the  sheriff  seems  to  be  of  the  same  nature  with  his 
claim  under  the  judgment,  and  one  which  may  be  satisfied  in  the 
same  manner.  No  right  would  exist  to  pursue  the  specific  pieces 
received  by  the  officer,  although  they  should  even  have  an  ear- 
mark ;  and  an  action  of  debt,  not  of  detinue,  may  be  brought 
against  him,  if  he  fails  to  pay  over  the  sum  received,  or  converts 
it  to  liis  own  use.  It  seems  to  the  court,  that  a  right  to  specific 
pieces  of  money  can  only  be  acquired  by  obtaining  the  legal  or 
actual  possession  of  them,  and  until  this  is  done,  there  can  be  no 
such  absolute  ownership  as  that  execution  may  be  levied  on  them. 
A  right  to  a  sum  of  money  in  the  hands  of  a  sheriff  can  no  more 
be  seized  than  a  right  to  a  sum  of  money  in  the  hands  of  any  other 
person,  and  however  wise  or  just  it  may  be  to  give  such  a  remedy, 
the  law  does  not  appear  yet  to  have  given  it."  The  court  then 
comment  upon  some  English  cases  which  had  been  cited,  and  thus 
conclude  the  consideration  of  this  branch  of  the  case :  "  Consider- 
ing the  case  then  either  on  principle  or  authority,  it  appears  to  the 
court  that  the  creditor  has  not  such  a  legal  property  in  the  specific 
pieces  of  money  levied  for  him  and  in  the  hands  of  the  sheriff,  as 
to  authorize  that  officer  to  take  those  pieces  in  execution  as  the 
goods  and  chattels  of  such  creditor."  ^ 

The  same  conclusion  was  arrived  at  in  Kentucky,  in  a  case  where 
the  facts  were  almost  identical .^ 

In  Ohio,  the  same  question  arose,  in  consequence  of  a  sheriff 
levying  an  attachment  on  money  in  his  hands  collected  under  ex- 
ecution. There  the  court  said  :  "  While  the  money  remains  in  the 
hands  of  the  officer,  it  is  in  the  custody  of  the  law.  It  does  not 
become  the  property  of  the  judgment  creditor  till  it  is  paid  over, 
and  consequently  it  is  not  liable  to  be  attached  as  his.  The  writ 
of  attachment  could  not  supersede  the  execution,  or  release  the 

1  Turner  i-.  Fendall,  1  Cranch,  117.  '  First  v.  MiUer,  4  Bibb,  311. 

[347] 


§  506  CAPACTTY  IK  WmCH   GARNISHEE  [ciIAl    XXII 

shcrifTfrora  a  literal  compliance  with  its  command,  which  required 
him  to  bring  the  money  into  court,  so  that  it  might  be  subject  to 

their  order A  strong  argument  might  also  i>e  drawn  from 

the  mischievous  consequences  that  would  follow  such  a  course  of 
practice.  It  would  lead  to  endless  delay  and  vexation.  One  attachs 
ment  might  follow  another,  till  the  whole  demand  was  absorbed  in 
costs."  ^ 

§  50(3.  If,  then,  money  in  the  hands  of  a  shcrilT  in  his  ofiicial 
capacity  cannot  be  levied  on  by  execution  or  attachment,  can  it  bo 
reached  by  garnishment?  In  Vermont  and  New  Jersey,  the  courts 
have  held,  tluit  thougli  the  levy  is  impracticable,  yet  the  garnish- 
ment may  be  maintained,  on  the  ground  that  the  money  is  a  right 
or  credit  of  the  defendant's  in  the  sherilf's  possession.^  In  New 
Hampshire,  the  doctrine  was  at  one  time  incidentally  asserted, 
that  the  sheriff  could  not  be  garnislied  hffnre  the  return  day  of 
the  execution; 3  but  afterwards  the  same  court  receded  from  this 
view,  and  sustained  such  a  garnishment.''  These  decisions  are, 
however,  overborne  by  the  weight  of  authority. 

This  question  received  an  early  consideration  and  decision  in 
Massachusetts.^  A  sheriff  had  collected  money  on  execution,  and 
before  the  writ  was  returnable  the  money  was  attached  in  his 
hands,  by  garnishment,  under  an  attachment  against  the  execu- 
tion creditor.  The  court  were  unanimous  in  discharLrinj;  the 
garnishee.  Parker,  J.,  said  :  '•  When  an  officer  receives  money 
upon  an  execution,  the  law  prescribes  his  duty  in  relation  to  it. 
Ue  is  not  bound  to  pay  it  over  to  the  creditor  until  tlie  return  day 
of  the  execution.  From  his  receipt  of  it  until  that  day,  it  is  not 
the  creditor's  money,  but  is  in  the  custody  of  the  law."  Sewall, 
J. :  "I  consider  the  statute  giving  this  process  of  foreign  attach- 
ment as  a  very  beneficial  one,  and  am  therefore  for  apjjlying  a 
liberal  construction  to  it.  But  there  must  be  bounds  to  this  liber- 
ality. In  the  case  before  us,  an  officer,  in  the  execution  of  a  pre- 
cept of  the  law,  has  received  money,  for  which  he  is  accountable  to 

1  Dawson  v.  Holcombe,  1  Ohio,  1.34.  See  Prentiss  v.  Bliss,  4  Vermont,  51.3  ;  Dubois 
V.  Dubois,  6  Cowen,  494  ;  Crane  v.  Freese,  1  Harrison,  305  ;  Reddick  v.  Smith,  4  Illinois 
(3  Scamnion),  451. 

•^  Conant  v.  Bicknell,  1  D.  Chipman,  50;  Hurlburt  v.  Hicks,  17  Vermont,  193;  Love- 
joy  V.  Lee,  35  Ibid.  430 ;  Crane  v.  Freese,  1  Harrison,  305. 

*  Adams  v.  Barrett,  2  New  Ilamp.  374. 

*  Woodbridge  v.  Morse,  5  New  Hamp.  519. 
6  Wilder  v.  Bailey,  3  Mass.  289. 

[348] 


CHAP.  XXII.]  HOLDS  DEFENDANT'S  PROPERTY".  S  506 

a  tliii.l  i.erson.  An  attempt  is  made  to  interrupt  the  execution  of 
the  precept,  and  to  divert  the  money  from  the  course  which  the 
law  prescribed.  If  such  practice  should  be  permitted,  great  in- 
convenience and  mischief  would  be  the  consequence."  Sedgwick 
J.,  after  arriving  at  the  conclusion  that  the  money  was  neither 
goods  nor  effects  of  the  execution  plaintiff,  thus  proceeds: 
"  Xeitlier  can  this  money,  in  my  oi)inion,  be  considered  as  a  credit 
in  the  hands  of  the  officer.  There  cannot  be  a  credit  without  a 
creditor  and  dcl)tor.  Tliere  is  nothing  in  the  reason  of  the  thing, 
resulting  from  the  relation  of  a  judgment  creditor  and  an  officer 
who  has  collected  money  for  him,  which  renders  the  one  a  creditor, 
and  the  other  a  debtor.  There  is  nothing  said  in  any  of  the  books, 
wliich  implies  that  that  rchation  exists  between  them.  On  the 
contrary,  money  so  collected  is  in  the  custody  of  tlie  law,  and  the 
sheriff  is  the  trustee  for  its  safe  keeping.  I  confess  that  I  should 
have  been  extremely  sorry  to  liave  found  that  the  attempt  to  charge 
the  officer  as  the  trustee  of  the  judgment  creditor  could  have  been 
supported.  If  it  could,  a  princijile  would  have  been  established, 
that  an  execution,  which  has  l»ecn  justly  called //t«s  et  fructus  of 
legal  pursuits,  might  be  eternally  defeated.  A  judgment  debtor 
would  have  had  nothing  more  to  do,  when  he  had  paid  the  money, 
than  to  engage  a  friend,  who  had,  or  who  would  pretend  that  he 
hud,  a  demand  against  the  creditor,  and  fix  the  money  ii;  the 
hands  of  the  officer,  as  long  as  there  could  be  any  pretence  of 
keeping  alive  the  suit ;  and  when  that  could  no  longer  be  done,  a 
new  action  might  be  instituted,  and  the  same  consequences  ensue, 
and  so  on,  ad  infinitum.  This  might  be  done  independently  by  the 
debtor,  merely  to  gratify  revenge  ;  it  might  be  done  by  collusion 
l>et\veen  the  officer  and  the  debtor ;  or  it  might  be  done  even  by 
the  officer  alone,  to  secure  to  himself  the  use  of  the  money, 
which,  from  its  amount,  might  vastly  overbalance  the  trifling  ex- 
penses which  he  would  incur."  Parsons,  C.  J.,  concurred  with 
his  associates  upon  substantially  the  same  grounds  taken  by 
them. 

This  case,  it  will  be  remarked,  presented  the  question  of  gar- 
nishment of  a  sheriff  hifiore  the  return  day  of  the  execution.  In 
a  subsequent  case,  where  the  garnishment  took  place  after  the 
return  of  the  execution,  the  same  court  affirmed  and  applied  its 
previous  decision.^ 

1  Pollard  V.  Ross,  5  Mass.  319. 

[349] 


§  508  CAPACITY   IN   WHICH   GARNISHEE  [CHAP.  XXIL 

A  late  expression  of  the  views  of  that  court  on  this  subject,  was 
in  a  case  where  an  officer,  charged  with  the  service  of  criminal 
process  against  a  person,  arrested  him,  and,  as  incidental  to  the 
service  of  the  process,  took  from  liim  money  and  property  found 
in  his  possession.  The  next  day,  being  satisfied  that  the  prisoner 
had  committed  no  crime,  he  went  to  the  jail  to  return  the  money 
and  property  to  liim,  and  when  about  entering  the  jail,  wus  sum- 
moned as  garnishee  of  the  prisoner.  Tlie  question  was,  whether 
the  officer  was  exempt  from  garnishment,  under  that  clause  of  the 
statute  which  declared  tluit  no  person  sliould  be  adjudged  a  trus- 
tee "  by  reason  of  any  money  in  his  liands  as  a  public  officer,  and 
for  which  he  is  accountable,  merely  as  such  officer,  to  the  princii)al 
defendant."  The  court  held,  that  the  money  was  taken  liy  the 
officer  in  the  performance  of  liis  official  duty,  and  that,  therefore, 
he  could  not  bo  charged  in  respect  thereof.^ 

Tbc  doctrine  settled  in  Massachusetts,  has  been  also  established 
in  Maryland,  North  Carolina,  South  Carolina,  Alal)ama,  Tennessee, 
Illinois,  Missouri,  and  California,  and  incidentally  recognized  in 
Maine. 2  Viewed  either  as  sustained  by  authority,  or  as  resting  on 
sound  principles,  it  may  properly  be  considered  as  settled. 

§  507.  If  money  collected  cannot  bo  so  reached,  it  follows,  a 
fortiori,  that  a  sheriff  cannot  be  charged  as  garnishee  in  respect 
of  an  execution  in  his  hands  upon  which  the  money  has  not  been 
collected.* 

§  508.  But  though  a  sheriff  holding  money  received  in  pay- 
ment of  an  execution,  and  which  ought  to  be  paid  to  the  execution 
creditor,  cannot,  in  respect  thereof,  be  garnished,  yet  there  are 
other  circumstances  in  which  his  official  character  affords  him  no 
protection  from  garnishment.  In  all  the  cases  considered,  it  was 
held  that  the  money  was  in  the  sheriff's  hands  virtute  officii,  and 
therefore  in  the  custody  of  the  law.  But  where  money  in  his 
hands  has  ceased  to  be  in  such  a  position  as  to  claim  the  protec- 

1  Robinson  v.  Howard,  7  Gushing,  257;  Morris  v.  Penniman,  14  Gray,  220. 

2  Farmers'  Bank  v.  Beaston,  7  Gill  &  Johnson,  421  ;  Jones  v.  Jones,  1  Bland,  443 ; 
Overton  v.  Hill,  1  Murphcy,  47  ;  Blair  v.  Cantey,  2  Spcers,  34  ;  Burrell  v.  Letson,  Ibid. 
378 ;  s.  c.  1  Strobhart,  239 ;  Zurcher  r.  Magec,  2  Alabama,  253 ;  Pawley  v.  Gains,  1 
Tennessee,  208 ;  Drane  v.  McGavock,  7  Humphreys,  132 ;  Liphtncr  e.  Steinagel,  33 
Illinois,  510;  Marvin  v.  Hawley,  9  Missouri,  382;  6lymer  v.  Willis,  3  California,  363; 
Staples  V.  Staples,  4  Maine,  532  ;  Hill  v.  La  Crosse  &  M.  R.  R.  Co.,  14  Wisconsin,  291. 

8  Sharp  V.  Clark,  2  Mass.  91. 
[350] 


CHAP.  XXn.]       HOLDS  DEFENDANT'S  PROPERTY.  §  500 

tion  of  the  law,  he  will  be  subject  to  garnishment,  as  any  other 
person  would  be.  Therefore,  where  a  sheriff,  holding  an  execu- 
tion, sells  property,  and,  after  satisfying  the  execution,  there  is  a 
surplus  in  his  hands,  it  is  considered  to  belong  to  the  defendant, 
and  to  be  held  by  the  sheriff  in  a  private,  and  not  in  his  official, 
capacity,  and  may,  therefore,  be  reached  by  the  defendant's  credi- 
tors, either  by  direct  attachment  or  by  garnishment.^  The  same 
rule  extends  to  a  receiptor,  in  whose  hands  the  officer  has  placed 
attached  property.  If  there  is  more  than  sufficient  to  satisfy  the 
attachment,  the  receiptor  may  be  charged  as  garnishee  of  the  de- 
fendant in  respect  of  the  surplus.^  And  where  one  who  had  been 
sheriff,  received,  while  in  office,  a  list  of  fees  to  collect  for  a  regis- 
ter of  a  county,  and  made  collections  thereof,  and  after  both  he 
and  the  register  had  gone  out  of  office  he  was  summoned  as  gar- 
nishee of  the  latter,  it  was  held,  that  the  money  collected  by  him 
was  not  in  custodia  ler/is,  and  that  he  was  chargeable  as  garnishee 
in  respect  thereof.^  And  in  Connecticut,  where  an  execution 
commands  tlie  sheriff  "  that  of  the  money  of  the  said  defendant, 
or  of  his  goods,  chattels,  or  lands,  within  your  precincts,  you  cause 
to  be  levied,  and  paid  and  satinjied  unto  the  plaintiff '*  the  judgment 
debt  and  costs,  it  was  held,  tliat  this  language,  instead  of  the  ordi- 
nary command  to  the  officer  to  have  the  money  in  court,  made  him 
the  agent  of  the  plaintiff  in  its  collection,  and  that  ho  might  be 
charged  as  garnishee  of  one  for  whom  he  had  collected  money  on 
execution.* 

§  509.  Clerks  of  Courts.  The  same  principles  wliich  we  have 
seen  applied  to  administrators,  executors,  guardians,  and  sheriffs, 
are  applicable  to  clerks  of  courts,  who  frequently  have  money  of 
others  in  their  possession  officially.  It  has  been  decided,  that 
money  paid  into  the  hands  of  a  clerk  on  a  judgment,^  and  that 
money  in  the  possession  of  a  clerk  in  any  manner  in  virtue  of  his 

1  Watson  V.  Todd,  5  Mass.  271 ;  Orr  v.  McBryde,  2  Carolina  Law  Repository,  257 ; 
King  I'.  Moore,  6  Alabama,  160;  Tucker  v.  Atkinson,  1  Humphreys,  300;  Davidson 
r.  Clayland,  1  Harris  &  Johnson,  046  ;  Jaquett  r.  Talmer,  2  Harrin;,'ton,  144  ;  Wheeler 
V.  Smith,  11  Barlxjur,  345  ;  Heam  v.  Crutcher,  4  Yergcr,  461  ;  Pierce  v.  Carkton,  12 
Illinois  (5  Gilnian),  358 ;  Lightner  v.  Stciuagel,  33  Ibid.  510 ;  Dickison  v.  Palmer,  2  Rich- 
ardson, Equity  R.  407  ;  Hill  v.  Beach,  1  Beaslcy,  31 ;  Lovcjoy  v.  Lee,  35  Vermont,  430. 

a  Cole  r.  Wooster,  2  Conn.  2a3. 

«  Robertson  v.  Beall,  10  Maryland,  125. 

♦  New  Haven  Saw-Mill  Co.  v.  Fowler,  28  Conn.  103. 

6  Ross  V.  Clarke,  1  Dallas,  354;  Alston  i;.  Clay,  2  Hapvood  (N.  C),  171. 

[351] 


§  609  a  CAPACITY   IN   WmCH   GARNISHEE  [CHAP.  XXIL 

office,^  and  that  money  paid  into  court,^  cannot  be  attached.  But 
it  has  been  held,  that  money  in  the  hands  of  a  clerk,  arising  from 
a  sale  of  bind  in  partition,  whicli  he  has  been  ordered  by  the  court 
to  pay  over  to  the  parties  concerned,  may,  after  sucli  order,  be  at- 
tached.^ 

If  money  in  the  olTicial  possession  of  a  clerk  cannot  be  reached 
by  garnishment,  much  less  can  the  service  of  an  attachment  on 
him  have  the  effect  of  attaching  a  judgment  in  favor  of  the  attach- 
ment defendant,  remaining  of  record  in  his  court.*  And  still  less 
is  the  officer  authorized  to  seize  the  record  of  the  judgment.  Tho 
only  mode  of  reaching  the  judgment  in  such  case  is,  to  summon 
the  judgment  debtor  as  garnishee.'* 

§  509  a.  Receivers^  Trustees  of  Courts^  and  Trustees  accountable 
to  Courts.  Money  in  the  hands  of  a  receiver  appointed  by  a  court 
cannot  be  attached  in  his  hands.*'  In  Georgia,  this  rule  was  ap- 
plied to  a  case  where  the  suit  in  which  the  receiver  was  appointed 
was  termhiated  ;  for  ho  was  accountable  to  the  court,  and  the 
money  was,  therefore,  in  custodia  legis?  And  so  in  Louisiana.* 
But  where  the  register  of  a  court  of  chancery  held  a  surj)lus  of 
money  belonging  to  a  defendant,  after  a  sale  of  property  to  satisfy 
a  mortgage  decree,  he  was,  in  Alabama,  charged  as  garnishee  of 
the  defendant  in  respect  of  such  sur{)lus,  although  the  sale  had 
not  been  confirmed,  and  he  was  directed  by  the  decree  to  report 
his  doings  at  the  next  term  of  the  court.* 

Tho  rule  applied  to  receivers  is  equally  applicable  to  trustees 
appointed  by  courts  of  chancery  ;  ^^  and  to  a  trustee  holding  prop- 
erty which,  by  the  terms  of  his  trust,  is  to  be  disposed  of  by  the 
order  of  a  court. ^^ 

1  Hunt  V.  Stevens,  3  Iredell,  365  ;  Drnno  v.  McGavock,  7  Humphreys,  132. 

2  Furmers'  Bank  v.  Beaston,  7  Gill  &  Johnson,  421 ;  Murrell  v.  Jolmsou,  3  Hill  (S 
C),  12;  Bowden  v.  Schatzell,  Bailey,  Eq.  R.  360.    . 

8  Gaither  r.  Ballew,  4  Jones,  488. 

*  Daley  v.  Cunninfrham,  3  Louisiana  Annual,  55. 
^  Hanna  v.  Bry,  5  Louisiana  Annual,  651. 

8  Glenn  v.  Gill,  2  Maryland,  1  ;  Taylor  v.  Gillian,  23  Texas,  508. 
'  Field  V.  Jones,  11  Georgia,  413. 

*  Nelson  v.  Conner,  6  Robinson  (La.),  339. 
®  Langdon  v.  Lockett,  6  Alabama,  727. 

I*'  Bentley  v.  Shrieve,  4  Maryland  Ch'y  Decisions,  412. 

11  Cockey  v.  Leister,  12  Maryland,  124.     In  MePherson  v.  Snowden,  19  Maryland, 

197,  the  Court  of  Appeals  of  Maryland,  referring  to  the  previous  cases  on  this  point, 

said:  "  We  do  not,  however,  understand  from  these  cases  that  an  attachment  cannot 

be  issued  and  laid  in  the  hands  of  a  trustee  before  a  final  account,  and  that  it  would 

[352] 


CHAP.  XXII.]  HOLDS  DEFENDANT'S   PROPERTY.  §  51 1 

§  510.  Justices  of  the  Peace.  In  some  States,  it  is  the  practice 
for  money  collected  by  a  constable  on  an  execution  issued  by  a 
justice  of  the  peace,  to  be  paid  into  the  hands  of  the  justice.  It 
would  seem  to  follow,  from  the  numerous  decisions  previously  con- 
eidered,  that  such  an  officer  could  not  be  garnished  in  respect  of 
money  so  received,  and  in  Pennsylvania  it  has  been  so  lield.^  But 
in  Alabama,  it  was  decided  otherwise,  on  the  ground  (peculiar 
to  their  system  of  laws)  that  the  justice  is  not  merely  a  judicial 
officer  in  relation  to  the  collection  of  small  debts,  but  the  agent 
of  the  person  who  intrusts  their  collection  with  him ;  and  that  as 
soon  as  the  money  is  collected,  his  character  as  a  magistrate  ceases, 
and  he  holds  it  as  any  other  agent.^ 

§  511.  Trustees  of  Insolvents^  and  Assignees  in  Bankruptcy.  In 
Massachusetts,  it  has  been  decided  that  effects  in  the  hands  of  an 
assignee  of  a  bankru{)t  cannot  be  reached  by  garnishment,  as  they 
are  not  the  effects  of  the  bankrupt,  but  are  by  law  vested  in  tlie 
assignee.3  Upon  the  same  ground,  and  also  because  the  attach- 
ment, under  such  circumstances,  of  the  effects  oi  a  bankrupt  or 
insolvent,  would  utterly  defeat  the  whole  policy  of  the  bankrupt 
or  insolvent  laws,  the  same  decision  has  been  made  in  Maryland, 
with  regard  to  assignees  in  bankruptcy  and  trustees  of  insolvent 
debtors.* 

In  the  former  State,  however,  tliis  exemption  of  assignees  in 
bankruptcy  was  at  one  time  held  to  extend  only  to  cases  where  it 
was  sought  to  reach  the  bankrupt's  effects  to  subject  them  to  the 
payment  of  his  debts.  Tlierefore,  where  an  assignee  was  gar- 
nished, in  an  action  against  a  creditor  of  the  bankrupt,  to  whom 
a  dividend  of  the  bankrupt's  estate  was  due,  he  was  charged  as 
garnishee.^  It  does  not,  however,  appear  that  the  question  was 
raised  whether  an  officer  of  this  kind  was  exempted  by  his  official 
character  from  the  operation  of  this  process.  But  recently  the 
Supreme  Court  of  that  State  overruled  the  cases  just  cited,  and 

fiot  be  effective  upon  a  snra  ascertained  bj  such  an  account  to  be  the  distributive  share 
of  the  debtor  in  the  attachment ;  but  that  the  process,  before  the  account  is  stated,  can- 
not atiect  the  fund  or  the  trustee,  or  compel  any  modification  of  the  final  account,  for 
the  benefit  of  the  attaching  creditor." 

1  Corbyn  v.  Bollman,  4  Watts  &  Sergeant,  342. 

-  Clark  V.  Boggs,  6  Alabama,  809. 

*  Oliver  v.  Smith,  5  Mass.  18.3. 

*  Farmers'  Bank  v.  Beaston,  7  Gill  &  Johnson,  421. 

*  Jones  V.  Gorhiun,  2  Mass.  375  ;  Decoster  v.  Livermore,  4  Ibid.  101. 

23  [353] 


§  512  CAPACITY   IN   WHICH   GARNISHEE  [CHAP.  XXII. 

held  that  an  assignee  under  the  insolvent  law,  having  money  in 
his  hands,  payable  to  the  defendant  as  a  creditor  of  the  insolvent, 
could  not  be  charged  as  garnishee  in  respect  thereof.^ 

§  512.  Bishursing  Officers.  "We  have  already  seen  tliat  a  county 
treasurer  could  not  be  cliarged  as  garnishee,  in  respect  of  a  sum 
of  money  due  to  the  defendant  from  the  county,  and  which  it  was 
the  treasurer's  duty  to  pay.-  A  similar  caso  arose  in  Kentucky, 
where  an  attempt  was  made  to  reach  a  sum  of  money  aHowed  by 
the  legislature  to  an  individual,  by  garnishing  the  auditor  and 
treasurer  of  the  State ;  but  it  was  lield  that  the  proceeding  could 
not  be  maintained.'  And  so  in  Tennessee,  where,  in  a  proceeding 
by  attacluncnt,  in  chancery,  it  was  sought  to  reach  the  salary  of 
the  treasurer  of  the  State,  by  the  operation  of  the  attaclunent  on 
the  State  comptroller,  whose  official  duty  it  was  to  issue  his  war- 
rant for  the  salary.* 

The  Supreme  Court  of  the  United  States  settled  the  same  rule 
with  regard  to  all  governmental  disbursing  ofticers.  The  U.  S, 
Frigate  Constitution  returned  from  a  cruise,  and  several  writs  of 
attachment  were  issued  by  a  justice  of  the  peace,  against  sea- 
men of  the  frigate,  under  which  the  purser  of  the  ship  was  gar- 
nished. The  purser  admitted  before  the  justice  having  money  in 
his  hands  due  to  the  defendants,  but  contended  he  was  not  amen- 
able to  the  process.  Judgment  was,  however,  given  against  him, 
and,  on  appeal  to  the  Superior  Court  of  the  county,  was  allirmed. 
The  case  went  thence  to  the  Supreme  Court  of  the  United  States, 
which  tribunal  reversed  the  judgment,  and  in  doing  so  held  the 
following  language :  "  Tiie  important  question  is,  whether  the 
money  in  the  hands  of  the  purser,  though  due  to  the  seamen  for 
wages,  was  attachable.  A  purser,  it  would  seem,  cannot,  in  this 
respect,  be  distinguished  from  any  other  disbursing  agent  of  the 
government.  If  the  creditors  of  these  seamen  may,  by  process 
of  attachment,  divert  the  public  money  from  its  legitimate  and 
appropriate  object,  the  same  thing  may  be  done  as  regards  the  pay^ 
of  our  officers  and  men  of  the  army  and  of  the  navy  ;  and  also  in 
every  other  case  where  the  public  funds  may  be  placed  in  the 
hands  of  an  agent  for  disbursement.     To  state  such  a  principle 

1  Colby  V.  Coates,  6  Gushing,  558;  Dewing  v.  Wentworth,  11  Ibid.  499. 

2  Chcaly  v.  Brewer,  7  Mass.  259 ;  Buli^ley  v.  Eckcrt,  3  Penn.  State,  368. 

*  Divine  v.  Ilarvie,  7  Monroe,  439.     See  Spalding  v.  Imlay,  1  Root,  551. 

*  Bank  of  Tennessee  v.  Dibrell,  3  Snecd,  379. 

[354] 


CHAP.  XXn.]       HOLDS  DEFENDANT'S  PROPERTY.  §  514 

is  to  refute  it.  No  government  can  sanction  it.  At  all  times  it 
would  be  found  embarrassing,  and  under  some  circumstances  it 
might  prove  fatal  to  the  public  service. 

"  The  funds  of  the  government  are  specifically  appropriated  to 
certain  national  objects,  and  if  such  appropriations  may  be  di- 
verted and  defeated  by  State  process  or  otherwise,  the  functions 
of  the  government  may  be  suspended.  So  long  as  money  remains 
in  the  hands  of  a  disbursing  officer,  it  is  as  much  the  money 
of  the  United  States,  as  if  it  had  not  been  drawn  from  the  treas- 
ury. Until  paid  over  by  the  agent  of  the  government  to  the 
person  entitled  to  it,  the  fund  cannot,  in  any  legal  sense,  be 
considered  a  part  of  his  effects.  The  purser  is  not  the  debtor 
of  the  seamen."  * 

§  513.  But,  where  the  garnishee,  though  acting  under  public 
authority,  is  not  a  public  officer,  but  merely  an  agent  for  a  par- 
ticular purpose,  a  distinction  has  been  made.  Thus,  where  a 
town  in  New  Hampshire  (in  pursuance  of  a  law  authorizing  the 
several  towns  to  make  a' disposition  of  the  public  money  deposited 
with  them,  in  such  manner  as  each  town  should  by  a  major  vote 
deterniiiie),  voted  to  di.'-tribute  it  "  to  the  inliabitants  of  the  town 
per  capita,'^  according  to  a  census  to  be  taken,  and  appointed  an 
agent  to  make  the  distribution  ;  it  was  held,  that  the  agent  could 
be  charged  as  garnishee  of  one  of  the  inhabitants  in  respect  of  his 
distributive  share.^ 

§  514.  The  position  taken  by  the  Supreme  Court  of  the  United 
States,  that  the  money,  while  in  the  hands  of  the  disbursing 
officer,  though  delivered  to  him  for  the  purpose  of  being  paid  to 
the  defendant,  is  still  the  money  of  the  government,  applies  as 
well  to  all  cases  where  an  agent  has,  without  any  privity  between 
him  and  the  defendant,  received  from  his  principal  money  to  be 
paid  to  the  defendant,  but  which  lie  has  not  yet  paid,  or  agreed 
with  the  defendant  to  pay,  to  him.  There,  any  attempt,  in  a 
proceeding  against  the  party  to  whom  the  money  is  to  be  paid, 
to  reach  it  by  garnishment  of  the  ^gent,  will  be  unavailing  ;  for 
he  is  not  the  debtor  of  the  defendant,  nor  is  the  money  in  his 

1  Buchanan  v.  Alexander,  4  Howard,  Sup.  Ct.  20.  See  Averill  v.  Tucker,  2  Cranch, 
C.  C.  544  ;  Clark  r.  Great  Barrington,  11  Pick.  260;  Mechanics  and  Traders'  Bank  v. 
Hodpe,  3  Robinson  (La.),  373. 

"  Wendell  v.  Pierce,  13  New  Hamp.  502. 

[355] 


§  516  CAPACITY   IN   WraCH   GARNISHEE  [CHAP.  XXH. 

hands  tlie  defendant's,  but  the  principal's.  The  only  way  to 
reach  it  is  by  garnishment  of  the  principal.^  The  case  is  different, 
however,  where  the  money  is  collected  for  the  defendant  by  hi» 
agent.  There,  the  agent  is  in  direct  privity  with  the  defendant, 
and  the  money  in  his  hands  is  the  defendant's,  and  he  may  be 
charged  as  garnishee  in  respect  thereof.^ 

§  515.  Attorneys  at  Laiv.  It  seems  to  be  generally  conceded 
tliat  persons  practising  as  attorneys  at  law,  and  holding  money 
of  their  clients,  are  not  protected  by  their  legal  capacity  from 
garnisliment,  but  are  considered  liable  in  respect  of  money  so 
held  by  them,  even  though  their  clients  could  maintain  no  action 
against  tliem  for  the  money  until  the  payment  of  it  should  have 
been  demanded.^ 

§  51G,  Mmncipal  Corporatiom.  These  bodies  have  not  escaped 
the  efforts  of  creditors  to  reach  the  moneys  of  debtors.  Their 
liability  to  garnishment  has  been  differently  regarded  in  different 
States.  In  New  nam{)shirc,  under  a  stathte  extending  the  opera- 
tion of  an  attachment  to  "  any  corporation  jwssessed  of  any 
money,"  <fec.,  of  tlie  debtor,  it  was  held  that  a  toivn  might  be 
garnished.*  In  Connecticut,  where  the  statute  provides  that 
"  debts  due  from  any  person  to  a  debtor  "  may  be  attached,  the 
same  view  was  entertained  as  to  the  same  description  of  corpora- 
tion ;  ^  thougli  in  that  State  it  had  been  previously  held  that  a 
county  could  not  be  charged  as  garnishee.^  This  decision,  however, 
was  stated  to  have  rested  on  the  position  that  a  county  could  not 
contract  a  debt  for  wliich  an  action  would  lie  against  it,  and  was 
held  not  to  be  inconsistent  with  the  views  which  controlled  the 
court  in  sustaining  the  garnishment  of  a  town.'^  In  Iowa  it  was 
held,  that  an  incorporated  city  might  be  charged  as  garnisliee, 
for  money  due  to  a  defendant  for  public  work  done  by  him  for 

1  Neuer  v.  OTallon,  18  Missouri,  277  ;  Briggs  v.  Block,  Ibid.  281  ;  Barnard  v. 
Graves,  16  Pick.  41  ;  Huntley  v.  Stone,  4  Wisconsin,  91. 

2  Kennedy  i'.  Aldridge,  5  B.  Monroe,  141. 

8  Staples  V.  Staples,  4  Maine,  5.32 ;  Voodbridge  v.  Morse,  5  New  Hamp.  519 ;  Co- 
bum  V.  Ansart,  3  Mass.  319  ;  Thayer  v  Sherman,  12  Ibid.  441 ;  Riley  v.  Hirst,  2  Penn. 
State,  346 ;  Mann  t;.  Buford,  3  Alabama,  312;  Tucker  v.  Butts,  6  Georgia,  580. 

•*  Whidden  v.  Drake,  5  New  Hara^.  13. 

6  Bray  v.  Wallingford,  20  Conn.  416. 

*  "Ward  V.  Hartford,  12  Conn.  404. 

'  See  remarks  of  Storks,  J.,  in  Bray  v.  Wallingford,  20  Conn.  416. 
fSoGJ 


CHAP.  XXn.]       HOLDS  DEFENDANT'S  PROPERTY.  §  516 

the  city.^  In  Vermont,  on  the  contrary,  it  was  held,  that  a  town 
was  not  subject  to  garnishment,^  and  in  Missouri,  Maryland,  Ala- 
bama, and  Wisconsin,  that  a  city  could  not  be  charged  as  gar- 
nishee ;  ^  and  in  Minnesota,  that  a  county  cannot  be  garnished.* 
Thus  the  question  stands,  so  far  as  the  adjudications  are  concerned. 
The  argument  in  favor  of  holding  such  bodies  as  garnishees,  is 
derived  from  the  policy  of  the  law  which  subjects  all  of  a  debtor's 
property  to  the  payment  of  his  debts  ;  while  the  adverse  argument 
is  based  on  the  inconvenience  and  impolicy  of  interfering  with  the 
operations  of  municipal  bodies,  by  drawing  them  into  controversies 
ill  which  they  have  no  concern,  and  diverting  the  moneys  they 
have  to  pay,  from  the  channel  in  which  by  the  acts  or  ordinances 
of  the  corporation  they  are  required  to  flow.  The  question  may 
be  considered  as  hardly  yet  fully  settled,  so  far  as  inferior  muni- 
cipal organizations  are  concerned.  Not  so,  however,  where  a  State 
is  attempted  to  be  thus  reached.  This  cannot  be  done,  though  its 
constitution  require  the  legislature  to  direct  by  law  in  what  courts 
and  in  what  manner  suits  might  be  commenced  against  the  State, 
and  tlie  legislature  had  passed  laws  to  that  effect.^ 

In  this  connection  may  properly  be  mentioned  a  case  which 
arose  in  Louisiana,  where  it  was  attempted  to  subject  to  attach- 
ment taxes  due  from  individuals  to  a  municipal  corporation. 
On  high  principles  of  public  policy,  it  was,  in  a  learned  and 
elaborate  opinion,  held  that  the  proceeding  was  unauthorized  and 
inadmissible.^ 

1  Wales  I'.  Muscatine,  4  Iowa,  302. 

"  Bradley  r.  Rieliinond,  6_  Vermont,  121. 

8  Hawthorn  v.  St.  Louis, 'u  Missouri,  59;  Fortnne  k.  St.  Louis,  2.3  Thid.  239;  Balti- 
more I'.  Root,  8  Maryland,  95  ;  Mobile  v.  Rowland,  26  Alabama,  498 ;  Burnham  v. 
Fond  du  Lac,  15  Wisconsin,  193. 

*  McI)ou<:al  v.  Hennepin  County,  4  Minnesota,  184. 

'  McMeekin  v.  The  State,  9  Arkansas  (4  English),  553 ;  BanK  of  Tennessee  v.  Dib- 
rell,  3  Sneed,  379. 

*  E^rerton  >•.  Third  Municipality,  1  Louisiana  Annual,  435.  Sed  contra,  Smoot  ii 
Hart.  33  Alabama,  69. 

[357] 


GARXISUEES   LIABILITY  [CRAP.  XXIII. 


CHAPTER    XXIII. 

THE   garnishee's    LUBILITY,   AS   AFFECTED    BY   PREVIOUS   CONTRACTS 
TOUCHING  THE  DEFENDANT'S   PROPERTY   IN   HIS   HANDS. 

§  517.  The  liability  of  a  garnishee  in  respect  of  property  of  a 
defendant  in  his  hands,  is  to  be  determined  ordinarily  by  liis 
accountability  to  the  defendant  on  account  of  the  property.  If 
by  any  pre-existing  bona  fide  contract  that  accountability  have 
been  removed,  or  modified,  it  follows  that  the  garnishee's  liability 
is  correspondingly  affected.  For  it  is  well  settled  that  garnish- 
ment cannot  have  the  effect  of  changing  the  nature  of  a  contract 
between  the  garnishee  and  the  defendant,  or  of  preventing  the 
garnishee  from  performing  a  contract  with  a  third  person.  Any 
other  doctrine  would  lead  to  mischievous  results.* 

Therefore,  where  goods  were  shipped  by  the  defendant  to  the 
garnishee,  and  a  bill  of  exchange  drawn  on  the  garnishee,  whicli, 
before  the  goods  were  received,  was  presented,  and  he  refused  to 
accept  it,  and  it  was  returned  to  the  drawers,  and  soon  afterwards 
the  goods  arrived,  and  the  garnishee  called  on  the  persons  who 
had  presented  the  bill  to  him,  and  told  them  if  they  would  get 
the  bill  back  he  would  pay  it,  and  after  this  promise  he  was  sum- 
moned as  garnishee  of  the  shippers  of  the  goods,  and  in  his 
answer  admitted  the  possession  of  the  defendant's  goods,  but 
set  up  his  promise  to  pay  the  bill ;  it  was  held,  that  the  promise 

i  The  doctrine  thus  stated  was  cited,  in  terms,  and  adopted  hy  the  Court  of  Appeals 
of  Maryland,  in  Baltimore  &  Ohio  R  11.  Co.  v.  Wheeler,  18  Maryland,  372,  where  it 
was  attempted  to  char;^^  that  company  as  {garnishee,  in  respect  of  moneys  received 
by  it  on  account  of  the  Central  Ohio  Railroad  Company.  The  roads  of  those 
two  companies  terminated  opposite  to  each  other  on  the  banks  of  the  Ohio  River,  and 
an  arraiiircment  existed  between  the  two  companies  for  "  throu;:h  "  transportation  of 
goods  and  passengers,  by  the  transfer  thereof  from  one  road  to  the  other ;  each  com- 
pany receiving  the  fare  or  toll  due  for  the  other  over  both  roads.  In  this  way  there 
were  mutual  accounts  to  be  settled  between  the  companies,  for  tlie  receipts  of  each  on 
the  other's  behalf;  which  were  settled  monthly,  the  balances  being  always  in  favor  of 
the  Baltimore  &  Ohio  Company.  The  court  held,  that  under  such  circumstances, 
moneys  received  by  that  company  for  the  other  were  not  subject  to  attachment,  unless, 
upon  a  settlement  of  accounts  between  them,  there  should  be  found  a  balance  in  favor 
of  the  latter  ;  and  while  the  arrangement  existed  between  them,  as  stated,  it  could  not 
be  broken  up  by  an  intervening  attachment.  The  same  doctrine,  in  eflrect,_  was  pre- 
viously enforced  by  the  same  court,  in  Poe  v.  St.  Mary's  College,  4  Gill,  499. 
[358] 


CHAP.  XXTIl.J      AS   AFFECTED   BY   PREVIOUS   CONTRACTS.  §  517 

was  binding  on  him  and  gave  him  a  lien  on  the  goods,  in  virtue 
of  which  he  was  entitled  to  retain  the  goods  for  his  indemnity.^ 
So,  where  the  garnishee  had  goods  of  the  defendant  in  his  hands 
on  consignment,  and,  at  the  defendant's  request,  agreed  to  pay- 
to  a  third  person  the  amount  of  a  bill  of  exchange  of  the  de- 
fendant which  had  been  protested,  and  wliich  that  third  person 
had  accepted  for  the  honor  of  one  of  the  indorsers  thereon,  and 
after  making  this  agreement  he  was  garnished ;  it  was  held,  that 
his  agreement  was  binding  on  him,  and  that  he  was  entitled  to 
retain  out  of  the  proceeds  of  the  goods  the  amount  of  the  bill 
which  he  had  undertaken  to  pay.^  So,  where  A,  delivered  goods 
to  B.,  with  directions  to  sell  the  same  on  his  arrival  in  New 
Orleans,  and  pay  the  proceeds  to  C.  D.  and  E.,  to  extinguish,  as 
far  as  they  would  go,  a  debt  he  owed  them.  On  his  arrival  in 
New  Orleans,  B.  placed  the  goods  in  the  hands  of  C,  D.  and  E., 
to  sell,  informing  them  of  A.'s  directions,  and  that,  in  conformity 
thereto,  he  would  pay  over  the  proceeds  to  them ;  to  which  they 
assented.  Before  the  goods  were  sold  they  were  attached  by  a 
third  party  as  the  property  of  A. ;  and  it  was  held,  that  they 
were  not  subject  to  such  attachment,  because  the  promise  of  B. 
to  C.  D.  and  E.  bound  him  to  pay  the  proceeds  to  them,  and  A. 
could  not,  by  a  change  of  his  determination,  have  compelled  him 
to  pay  the  money  to  any  other  person.^  So,  where  one  summoned 
as  garnishee  had,  before  the  garnishment,  in  a  transaction  with  the 
defendant,  purchased  from  him  goods,  under  an  agreement,  that, 
in  consideration  of  tlie  sale  of  the  goods  to  him,  he  would  pay 
off  a  mortgage  on  land  which  the  defendant  had  previously  exe- 
cuted, which  was  paid  after  the  garnishment ;  it  was  held,  that 
as  the  defendant  could  not  lawfully,  by  any  interference,  prevent 
the  garnishee  from  taking  up  tlie  mortgage,  so  neither  could  the 
plaintiff  l>y  the  operation  of  the  attachment.*  So,  where  one 
summoned  as  garnishee  had  received  for  the  defendant  an  order 
on  a  town  treasury  for  a  certain  sum,  having  previous  to  its 
receipt  agreed  with  the  defendant  and  a  third  person  to  whom 
the  defendant  was  indebted,  to  deliver  the  order,  when  received, 
to  that  third  person,  and  immediately  after  receiving  the  order 

1  Grant  v.  Shaw,  16  Mass.  341. 

2  Curtis  V.  Norris,  8  Pick.  280. 

8  Armor  v.  Cockburn,  4  Martin,  n.  8.  667 ;  Cutters  v.  Baker,  2  Louisiana  Annual, 
572 ;  Oliver  v.  Lake,  .3  Ibid.  78 ;  Burnside  v.  McKinley,  12  Ibid.  50.5. 
*  Owen  V.  Estes,  5  Mass.  330. 

[359] 


§  518  GARNISHEE'S   LIABILITY  [CIIAI'.  XXIIL 

he  was  garnished  ;  the  court  held,  that  he  was  bound  to  deliver 
it  according  to  his  promise,  and  that  the  garnishment  did  not 
relieve  him  from  his  obligation.^  So,  where  the  garnishee  had, 
previous  to  the  garnishment,  received  from  the  defendant  a  sum 
of  money  and  a  note,  in  consideration  whereof  he  agreed  to 
enter  a  tract  of  land  at  the  land-office  for  the  defendant,  and  in 
pursuance  of  that  agreement  he  had  filed  a  land-warrant  in  said 
office,  to  be  located  for  the  defendant ;  and  pending  some  delay 
in  making  the  location,  he  was  summoned  as  garnishee  of  the 
party  from  whom  he  had  received  the  money,  and  thereupon 
desisted  from  any  further  effort  to  have  the  location  made  ;  it 
was  held,  that  he  could  not  be  charged.^  So,  where  a  garnishee 
disclosed  that  certain  creditors  of  the  defendants  having  attached 
their  })ropcrty,  it  was,  after  the  attachment,  in  pursuance  of  a 
written  agreement,  signed  by  the  plaintiffs,  the  defendants,  and 
the  garnii>hee,  put  into  his  hands  to  sell,  and  apply  the  proceeds 
to  the  satisfaction  of  the  executions  that  might  be  recovered,  in 
the  order  of  the  attachments  ;  and  after  the  agreement  was  made, 
but  before  the  property  came  into  his  hands,  he  was  garnished  ; 
and  after  the  garnishment  he  received  the  property  and  disposed 
of  it  according  to  the  agreement :  it  was  held,  that  the  garnishee 
was  not  liable ;  the  court  considering  that  the  garnishment  "  did 
not  relieve  him  of  his  obligation  to  perform  the  contract  into  which 
he  had  entered.  He  received  property  of  the  defendants,  it  is 
true,  but  it  was  upon  the  express  trust  to  dispose  of  it  and 
discharge  the  liens  upon  it.  He  was,  therefore,  the  agent  of 
the  creditors,  to  sell  the  property  and  account  for  the  proceeds 
to  them,  with  the  assent  of  the  defendants."  ^ 

§  518.  In  Georgia  this  case  is  reported.  Goods  were  deposited 
with  a  warehouse-man,  who  gave  a  receipt  therefor,  engaging  to 
deliver  them  to  the  holder  of  the  receipt ;  and  he  was  summoned 
as  garnishee  of  the  party  who  made  the  deposit ;  and  after  the 
garnishment  he  delivered  the  goods  to  a  third  party  holding  the 
receipt,  to  whom  they  had  been  sold  after  that  event ;  and  at- 
tempted to  avoid  liability  as  garnishee,  on  the  ground  that  his 
receipt  was  a  negotiable  instrument,  and  bound  him  to  deliver 
the  goods  to  anybody  to  whom  it  might  be  transferred  :  but  the 

1  Mayhew  v.  Scott,  10  Pick.  54.  ^  Collins  v.  Brigham,  11  New  Ilamp.  420. 

2  Lundie  v.  Bradford,  26  Alabama,  512. 

[360] 


CHAP,  xxm.]     AS  affected  by  previous  contracts.  §  520 

court  held,  that  the  receipt  was  merely  evidence  of  a  contract 
of  bailment,  and  not  to  be  regarded  as  a  negotiable  security, 
and  that  the  delivery  of  tlie  goods  by  the  garnishee,  after  the 
garnishment,  was  in  his  own  wrong,  and  did  not  discharge  him 
from  liability.^ 

§  519.  The  contract  in  relation  to  the  efifects  in  the  garnishee's 
hands,  which  will  affect  his  liability,  must  not  only  be  entered 
into  before  the  garnishment,  but  it  must  be  his  contract,  and  not 
that  of  another.  Thus,  A.  sued  B.,  and  summoned  C.  as  gar- 
nishee ;  and  at  the  time  of  instituting  the  suit,  an  agreement 
was  entered  into  between  A.  and  B.,  as  to  the  disposition  which 
should  be  made  of  the  funds  in  the  garnishee's  hands,  when 
recovered.  C,  having  knowledge  of  the  terms  of  that  agreement, 
without  waiting  for  the  action  of  the  court  as  to  his  liability  as 
garnishee,  paid  over  the  money  in  his  hands  to  the  persons  to 
whom,  by  the  agreement,  it  was  to  be  paid  when  recovered,  and 
set  up  this  payment  as  a  discharge  of  his  liability  as  a  garnishee. 
The  court  held,  1.  That  the  contract  between  A.  and  B.  was 
executory,  and  to  operate  only  when  the  funds  should  be  recovered 
from  the  garnishee  ;  and  2.  That  the  payment  was  unauthorized, 
and  could  not  operate  to  discharge  the  garnishee ;  and  he*  was 
accordingly  charged.^ 

§  520.  A  case  occurred  in  New  Hampshire,  where  A.  and  B. 
made  a  wager  on  the  result  of  a  Presidential  election,  and  depos- 
ited the  money  in  the  hands  of  C,  to  be  held  by  him  until  the  4th 
of  March,  1841,  on  which  day,  in  one  event  of  the  election,  both 
sums  were  to  be  paid  to  A.,  and  in  the  other  event,  to  B.  In 
December,  1840,  C.  was  summoned  as  garnishee  of  A.,  and  the 
question  was,  whether  the  money  in  his  hands  received  from  A., 
could  be  subjected  to  the  attachment,  notwithstanding  the  agree- 
ment of  wager.  Tlie  court  mooted,  but  did  not  deem  it  necessary 
to  decide,  the  question  of  the  legality  of  the  wager;  and  held,  that 
a  creditor  of  A.  could  not  interfere  with  the  agreement  by  taking 
the  money  out  of  the  hands  of  C,  without  A.'s  consent,  unless  A. 
was  in  insolvent  or  embarrassed  circumstances.^    The  doctrine 

i  Smith  V.  Picket,  7  Georgia,  104. 
s  Webster  v.  Randall,  19  Pick.  13. 

«  Clark  V.  Gibson,  12  New  Hamp.  386.     See  "Wimer  v.  Pritchartt,  16  Missouri,  252. 

[361] 


§  520  GARNISHEE'S   LIABILITY  [COAP.  XXIIL 

here  advanced  cau  hardly  be  deemed  consistent  with  public  policy 
and  sound  morals.  The  better  view  is  that  taken  by  the  Supremo 
Court  of  Massachusetts,  holding  all  wagers  on  the  result  of  popu- 
lar elections  null  and  void,  and  the  money  in  the  hands  of  tho 
stake-holder  a  mere  naked  deposit,  respecting  which  the  agree- 
ment to  pay  it  over  to  one,  according  to  the  result  of  tho  pending 
election,  is  inoperative  and  void  ;  and  that,  liy  inij)lication  of  law, 
the  money  is  deposited  to  the  use  of  the  depositors  respectively, 
and  the  share  of  each  is  subject  to  attachment  for  his  debts,  at  any 
time  before  it  is  actually  paid  over  to  the  winning  party. ^  After 
it  is  paid  over,  however,  the  winner  cannot  be  charged  as  garnishee 
of  the  loser  in  respect  thereof.^ 

»  Ball  f.  Gilbert,  12  Mctcalf,  397.        *  Spcise  r.  M'Coy,  6  Watta  &  Sergeant,  485. 
[362] 


CHAP.  XXIV]      GARXrSHEE'S   LIABILITY.  —  ASSIGNMENTS.  §  523 


CHAPTER    XXIY. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  A  PREVIOUS  ASSIGNMENT 
OP  THE  defendant's  PROPERTY  IN  HIS  HANDS,  OR  BY  ITS  BEING 
SUBJECT   TO    A   LIEN,   MORTGAGE,   OR   PLEDGE. 

§  521,  A  VERY  coramoii  result  of  garnishment  is,  to  bring  the 
attachment  in  conflict  with  previous  transfers  of  the  defendant's 
property  found  in  the  hands  of  the  garnishee,  or  with  existing 
liens  upon  it.  Hence  have  arisen  numerous  decisions  concerning 
the  effect  of  garnishment  in  such  cases.  This  branch  of  the 
subject  will  be  considered  in  reference  to  the  following  heads  ; 
I.  Assignments,  legal  and  equitable ;  II.  Liens ;  III.  Mortgages 
and  Pledges. 

§  522.  I.  Assignments,  legal  and  equitable.  "Where  a  garnishee 
holds  property  which  once  belonged  to  the  defendant,  but  which, 
before  the  garnishment  was,  for  a  valuable  consideration,  sold  to 
the  garnishee,  the  attacimient  of  coiirse  cannot  reach  it.  ItTs  no 
longer  the  property  of  the  defendant,  but  of  the  garnishee.  In  any 
such  case,  if  the  assignment  be  in  writing,  and  bear  date  before  the 
attachment,  and  there  be  nothing  tOv^epel  the  presumptio/n  that  it 
bears  its  true  date,  it  will  be  efifectual  as  against  the  attachment, 
and  no  evidence  of  its  delivery,  or  of  its  re^pt  and  acceptance 
by  the  assignee,  before  service  of  the  attachment,  is  necessary  to 
perfect  it  and  give  it  priority.^ 

§  523,  Where  a  garnishee  sets  up  title  in  himself  to  the  property 
in  his  hands,  it  is  entirely  competent  for  the  plaintiff  to  impeach  that 
title,  on  account  of  fraud,  or  other  invalidating  circumstance,  and 
thereby  show  that  the  property  is  still  liable  for  the  defendant's 
debts.2  And  it  is  held  in  Louisiana,  that  he  may  call  upon  the 
assignee,  whether  he  be  the  garnishee  himself  or  a  third  party, 
to  prove  the  consideration  of  the  assignment.  "  The  attaching 
creditor,"  observed  the  Supreme  Court  of  that  State,  "  cannot  be 
deprived  of  his  lien  and  the  right  resulting  from  it,  unless  l)y  a 
person  who  has  previously  acquired  the  property  of  the  thing  at- 

1  Sandidge  v.  Graves,  1  Patton,  Jr.  &  Heath,  101.    -  Cowlcs  v.  Coe,  21  Conn.  220. 

[3G3J 


§  528  GARNISHEE'S  LIABIUTY  AS  AFFECTED         [ciIAP.  XXIV. 

tached ;  and  if  the  validity  of  the  consideration  be  a  necessary 
ingredient  in  the  right  of  the  assignee,  the  proof  must  come  from 
him  who  alleges  the  assignment ;  for  his  opponents  cannot  prove 
a  negative.  It  is  clear  of  any  doubt,  that  it  is  a  bona  fide  assign- 
ment alone  which  can  be  successfully  opposed  to  the  attaching 
creditor ;  and  if  proof  of  the  validity  of  the  consideration  could 
not  be  demanded,  this  would  be  tantamount  to  a  declaration  that  a 
fraudulent  or- collusive  assignment  might  have  that  efTeet."  ^  And 
in  New  Hampshire,  it  was  declared  that  the  assignee,  in  order  to 
maintain  his  claim  against  the  attaching  plaintiff,  is  bound  not 
only  to  prove  his  claim  to  have  been  first  in  time,  but  also  to  have 
been  well  founded  in  legal  right ;  and  that  the~^signment  was  not 
merely  formal,  but  bond  fide,  and  upon  sufficient  consideration.'^ 

Hence,  where  the  firm  of  A.  <fe  Co.,  being  insolvent,  placed  a 
number  of  demands  in  their  favor  in  the  hands  of  B.,  for  collec- 
tion, in  order  that  he  might  take  charge  of  the  proceeds  and  keep 
them  out  of  the  reach  of  attachment,  and  pay  a  dividend  out  of 
them  to  such  of  A.  &  Co.'s  creditors  as  were  willing  to  discharge 
them ;  and  B.  accepted  an  order  drawn  by  A.  &  Co.,  requesting 
him  to  pay  the  money  which  he  might  collect,  to  the  order  of  C, 
one  of  the  firm;  and  B.,  having  collccted'a  part  of  the  money, 
lent  it  to  different  persons  ;  and  was  afterward  summoned  as  gar- 
nishee of  A.  <fe  Co.,  at  a  time  when  he  had  nothing  in  his  hands 
but  some  of  the  demands  left  with  liim  for  collection,  and  the 
notes  which  he  had  taken  ;  and  after  the  garnishment,  in  con- 
formity with  verbal  orders  from  C,  he  paid  a  dividend  to  such 
of  the  creditors  of  A.  &  Co.  as  were  willing  to  give  a  discharge ; 
it  was  held,  that  this  was  an  invalid  transfer  of  property,  for  a 
purpose  not  recognized  by  law,  and  void  against  creditors ;  that 
the  order  of  A.  &  Co.  to  pay  the  proceeds  of  the  demands  to  C, 
was  the  same  as  if  it  had  been  drawn  in  favor  of  A.  &  Co. ;  and 
that  the  fact  that  the  proceeds  had  been  lent  out  and  notes  taken 
therefor,  made  no  difference  as  to  the  liability  of  B.,  as  garnishee 
of  A.  &,  Co.,  who  became  liable  for  the  money  received  by  him 
immediately  upon  its  receipt,  and  could  not  avoid  that  liability  by 
lending  the  money  out ;  and  therefore  he  was  charged  as  garnishee 
of  A.  &  Qo:^ 

So,  where  A.  was  indebted  to  B.,  and  B.  procured  C,  for  an 

1  Maher  v  Brown,  2  Louisiana,  492.  8  Hooper  v.  Hills,  9  Pick.  435. 

2  Giddings  v.  Coleman,  12  New  Hamp.  153. 

[364] 


CHAP.  XXIV.]  BY   ASSIGNilENTS   AND   LIENS.  §  524 

agreed  premium,  to  guarantee  the  debt ;  and  afterwards  A.  failed, 
and,  at  the  suggestion  of  B.,  but  without  any  knowledge  of  the 
previous  guaranty,  made  an  absolute  transfer  of  property  to  C,  to 
secure  the  debt  to  B.,  and  after  such  transfer  C.  was  garnished; 
the  court  held,  that  "  the  conveyance,  instead  of  being  made  for 
the  benefit  of  C,  was  evidently  intended  for  the  security  of  B. 
It  was  manifest  that  A.,  at  the  time  of  the  transfer,  had  no  knowl- 
edge that  C.  had  guaranteed  the  payment ;  and  between  them 
therefore  there  was  no  privity,  and  no  contract  created  by  that 
guaranty.  Had  C.  been  called  upon  for  the  amount  of  the  note, 
by  reason  of  his  separate  stipulation,  the  payment  of  that  amount 
would  not,  of  itself,  have  given  him  a  right  of  action  against  A. 
It  was  a  distinct  matter,  collateral  to  the  note,  between  other 
parties,  and  upon  another  consideration.  There  being  therefore 
no  consideration  moving  from  C.  for  the  conveyance  of  the  prop- 
erty in  question,  he  holds  it  as  the  trustee  of  A.,  and  must  be 
charffcd  as  such  in  this  action."  ^ 

So,  where  a  surety  received  from  his  principal  property  to  secure 
him  agahist  his  liabilities,  and  the  principal  afterwards  made  a  set- 
tlement with  the  surety,  in  which  he  transferred  to  the  surety  his 
whole  interest  in  the  property  for  a  grossly  inadequate  considera- 
tion, the  settlement  was  held  to  be  fraudulent  against  the  creditors 
of  the  principal,  and  the  surety  was  held  as  garnishee  of  the  prin- 
cipal, in  respect  of  the  property  received  by  him.^  But  in  this 
case,  as  well  as  another  in  Massachusetts,^  and  one  in  New  Hamp- 
shire,* where  property  was  found  in  the  garnishee's  hands,  under 
a  contract  that  was  fraudulent  as  to  creditors,  but  the  garnishee, 
before  he  was  summoned,  had,  bona  fide,  paid  debts  of  the  defend- 
ant to  an  amount  equal  to  the  value  of  the  property  in  his  hands, 
he  was  held  not  lialjle  in  respect  of  the  property. 

§  524.  The  rule,  as  stated  in  the  preceding  section,  applies  to  a 
case  where  tlie  assignee  is  before  the  court,  and  in  a  position  to 
assert  his  rights,  and  to  be  called  upon  to  defend  them.  Where 
this  is  not  the  case,  it  is  not  admissible  to  charge  with  fraud  a 
transaction  to  which  he  was  a^party.  Thus,  where  a  garnishee 
answered,  and  admitted  having  made  a  note  to  the  defendant, 
which  he  stated  was  assigned  to  a  third  party  before  the  garnish- 

1  Knipht  V.  Gorham,  4  Maine,  492.         3  Thomas  v.  Goodwin,  12  Mass.  140. 

2  Ripfey  v.  Severance,  6  Pick.  474.         *  Hutchins  v.  Sprague,  4  New  Harap.  469. 

^  [365] 


J  o25  GARNISHEE'S   LIABILITY   AS   AFFECTED  [CHAP.  XXIV. 

ment,  and  tlio  plaintiff,  on  a  contest  of  the  answer,  offered  to  prove 
that  the  assigiinient  was  fraudulent;  it  was  hold,  that  tliat  question 
could  not  be  tried  in  that  proceeding,  to  wliich  the  assignee  was  not 
a  party;  for  the  judgment  of  the  court  estahlishing  the  fraud  would 
not  he  conclusive  upon  him ;  and  if  not  thus  conclusive,  the  gar- 
nishee might  be  subjected  to  a  double  recovery.* 

§  525.  In  determining  whether  the  property  has  in  fict  been 
assigned,  the  point  to  be  ascertained  is,  whether  the  supposed  as- 
signor has  so  disposed  of  it  that  it  is  beyond  his  control.  A  mere 
direction  from  him  to  deliver  or  pay  it  to  the  supposed  assignee, 
without  his  knowledge  and  assent,  will  not  be  considered  to  con- 
stitute an  assignment,  as  against  an  attaching  creditor  of  the  a»- 
signor.2  Thus,  where  A.  sent  to  B.  a  (piantity  of  gold-dust  to  \)0 
sold,  and  directed  the  proceeds  to  be  paid  to  C,  a  creditor  of  A., 
and  after  the  sale,  and  before  the  proceeds  were  paid  over,  B.  was 
sunnnoned  as  garnisiiee  of  A.,  it  was  held,  that  C.  had  acqtiired 
no  interest  in  the  proceeds,  but  they  still  were  the  property  of  A.' 
So,  wliore,  upon  a  consignment  of  gofxls  to  be  sold  on  conunission, 
the  consignees  accepteil  an  order  drawn  upon  them  by  the  con- 
signor, by  which  they  were  requested  to  pay  to  his  order,  in  thirty 
days,  the  sum  of  one  thousand  dollars,  or  what  might  be  due  after 
deducting  all  advances  and  expenses,  and  after  the  accentance,  but 
before  the  goods  were  sold,  the  consignees  were  summoned  as  gar- 
nishees of  the  consignor  ;  it  was  decided  that  the  order,  not  being 
made  to  a  third  person,  could  not  operate  as  an  assignment,  and 
neither  was  it  a  negotiable  security  ;  and  therefore  the  garnisliees 
were  charged.*  So,  where  attorneys  at  law  collected  money  in  a 
suit  in  the  name  of  A.,  to  the  use  of  B.,  and  were  summoned  as 
garnishees  of  A.,  and  B.  disclaimed  any  right  to  the  money,  they 
were  charged.^  So,  where  goods  were  shipped  by  A.  to  B.,  and  A. 
afterwards  drew  a  draft  on  B.,  in  favor  of  a  third  party,  against 
the  consignment,  which  draft  B.  refused  to  accept,  but  expressed 
a  willingness  to  pay  the  amount  of  it  out  of  the  proceeds  of  the 

1  Simpson  v.  Tippin,  5  Ste\yart  &  Porter,  208. 

2  Baker  v.  Moody,  1  Alabama,  315. 

8  Brigsrs  r.  Block,  18  Missouri,  281  ;  Sproule  v.  McNulty,  7  Ihid.  62.  Sec  Brown  v. 
Foster,  4  Gushing:,  214  ;  State  v.  Brownlee,  2  Speers,  519  ;  People  r.  Johnson,  14  Eli- 
nois,  342  ;  Dolsen  v.  Brown,  13  Louisiana  Annual,  551 ;  Robfirtson  v.  Scales,  Ibid.  545; 
Hearn  r.  Foster,  21  Texas,  401. 

*  Cushman  r.  Haynes,  20  Pick.  132. 

6  ^Mvatt  V.  Lockhart,  9  Alabama,  91. 
"    f366j 


CHAP   XXIV.]  BY   ASSIGNMENTS  AND   LIENS.  §  527 

consignment ;  it  was  held,  that  such  expression  was  insufficient  to 
give  the  herder  of  the  draft  a  right  to  the  proceeds.^ 

§  526.  But  where  the  appropriation  of  the  property  is  made  by 
the  assignor  and  accepted  by  the  assignee,  the  particular  form  in 
which  the  thing  is  done  is  of  little  moment,  and  tlie~  assignment 
will  be  sustained.  Thus,  certain  funds  were  placed  by  A.  in  the 
hands  of  B.,  for  the  purpose  of  paying  certain  drafts  drawn  upon 
the  fund,  and  the  holders  of  the  drafts  knew  that  the  fund  was  so 
placed  for  that  purpose,  and  assente^Jio.  it,  by  presenting  their 
drafts,  and  receiving  each  a  pro  rata  payment  out  of  thTfund.  It 
was  then  attempted  to  reach  the  fund  in  the  hands  of  B.  by  attach- 
ment against  A. ;  but  the  court  held,  that  it  was  assigned  to  B.  for 
a  particular  purpose,  and  that  the  assent  of  the  holders  of  tlie  drafts 
having  liecn  given,  there  was  an  appropriation  of  it  which  could 
not  be  clianged  without  their  consent,  and  tliat  B.  was  not  liable 
as  garnishee  of  A.^  So,  where  A.  received  a  sum  of  money  from 
B.  to  pay  over  to  C,  and  afterwards  saw  C,  and  informed  him  of 
having  received  it,  but  that  he  did  not  then  have  it  with  him,  but 
would  pay  it  to  him;  to  which  C.  assented  and  requested  A.  to  hold 
it  for  him,  which  A.  consented  and  promised  to  do ;  it  was  held, 
that  C.'s  right  to  the  money  became  absolute  after  his  conversation 
with  A.,  and  paramount  to  an  attachment  against  B.,  served  after 
that  time.^ 

§  527.  An  equitable  assignment  will  secure  the  property  against 
attachment  for  the  debt  of  the  assignor,  though  no  notice  be  given 
to  the  person  holding  the  property,  prjpr  to  the  attachment,  if  it  be 
given  in  time  to  enable  him  to  bring  ifto  the  attention  of  the  court 
before  judgment  is  rendered  against  him  as  garnishee.  Thus,  A. 
being  indebted  to  B.,  assigned  to  him  a  policy  of  insurance  on 
goods  at  sea,  which  were  afterwards  lost.  A  creditor  of  A.  gar- 
nished one  of  the  underwriters,  who  had  no  knowledge  of  the 
assignment  of  the  policy ;  and  the  question  was  whether  the  as- 
signment, without  notice  to  the  underwriters,  was  good,  so  far  as 
to  vest  a  property  in  the  assignee,  and  thus  preclude  an  attach- 

1  Dolsen  v.  Brown,  13  Ixinisiana  Annual,  551. 

*  Dwi|,'ht  V.  Bank  of  Michi'.'an,  10  Metcalf,  58.     See  Cammack  v.  Floyd,  10  Louis- 
iana Annual,  .351  ;  Smith  r.  Clarke,  9  Iowa,  241. 

8  Brooks  r.  Hildreth,  22  Alabama,  469.     See  Bumside  r.  McKinler,  12  Louisiana 
Annual,  505. 

[367] 


§  528  GARNISHEE'S   LIABILITY   AS   AFFECTED  [CIIAP.  XXIV. 

mcnt ;  and  the  court  were  unanimous  in  liolding  tluit  the  as- 
signment, thougli  made  without  tlie  knowledge  or  assent  of  the 
underwriter,  vested  an  equitable  right  in  the  assignee ;  and  the 
garnishee  was  discharged.^  So,  where  a  judgment  was  obtained 
in  the  name  of  A.,  to  the  use  of  B.,  it  was  held  not  attachable  in  a 
suit  against  A.^  So,  where  one  held  a  power  of  attorney  author- 
izing him  to  transfer  to  himself,  as  trustee,  certain  shares  of  l>ank 
stock  to  pay  a  debt  due  to  him  as  trustee,  it  was  held  to  be  an 
equitable  assignment  of  the  stock.^ 

§  628.  Much  more  will  an  assignment  be  effectual,  where  n^ice 
of  it  has  been  given  to  the  garnishee  before  the  attachment.  Thus, 
where  the  garnishees  disclosed  that  they  had  collected  money  for 
the  defendant,  but  before  its  receipt  and  before  the  garnishment, 
they  had  accepted  an  order  drawn  on  them  l>y  the  defendant  in 
favor  of  a  third  person,  for  whatever  sum  they  might  collect;  the 
order  was  held  to  be  an  assignment  of  the  money,  and  the  gar- 
nishees were  discharged.* 

So,  where  a  l)ank  was  garnished,  in  respect  of  certain  shares 
of  its  stock,  standing  in  the  name  of  the  defendants  on  its  books, 
but  which,  it  ai)peared  in  evidence,  had  been  sold  and  tra,nsferred 
by  the  defendants  in  England,  by  delivery  oflTie  certificate,  with 
a  power  of  attorney  authorizing  the  transfer  of  the  stock  on  the 
books  of  the  bank,  before  the  garnishment,  thougli  the  stock  was 
not  transferred  until  afterwards;  the  court  held,  that  the  stock 
was  equitably  transferred  before  the  garnishment,  and  in  giving 
their  opinion  used  the  following  language  :  "  It  cannot  be  denied, 
that  a  mere  chose  in  action  equitably  assigned,  is  not  subject  to 
the  operation  of  a  foreign  attachment  instituted  against  the  party 
whose  name  must  necessarily  be  used  at  law  for  the  recovery  of 
the  demand,  and  that  an  attaching  creditor  can  stand  on  no  better 
footing  than  his  delator.  This  abundantly  appears  from  the  Eng- 
lish authorities,  and  the  adjudications  in  our  sister  State  courts, 
cited  in  the  argument.     A  strong  instance  of  this  kind  occurred 

1  Wakefield  v.  Martin,  3  Mass.  558.  See  Page  v.  Crosby,  24  Pick.  211  ;  Balderston 
V.  Manro,  2  Cranch,  C.  C.  623;  Walling  v.  Miller,  15  California,  38;  Haldeman  v. 
Hillsborough  &  Cin.  R.  R.  Co.,  2  Handy,  101 ;  Smith  v.  Clarke,  9  Iowa,  241.    • 

2  Davis  V.  Taylor,  4  Martin,  n.  s.  134. 

8  Matheson  v.  Rutledge,  12  Richardson,  41. 

*  Leo-ro  V.  Staples,  16  Maine,  252  ;  Adams  v.  Robinson,  1  Pick.  461  ;  Nesmiili  v.' 
Drum,'8  Watts  &  Sergeant,  9  ;  Brazier  v.  Chappell,  2  Brevard,  107  ;  Lamkin  v.  Phil- 
lips, 9  Porter,  98  ;  Colt  v.  Ives,  31  Conn.  25. 
[368] 


CHAP.  XXIV.]  BY   ASSIGNilENTS  AND   LIENS.  §  531 

ill  this  court  iii  January  term,  1793.  John  Caldwell  brought  a 
foreign  attachment  against  Yance,  Caldwell  &  Yance,  and  laid  it 
on  effects  supposed  to  have  been  in  the  hands  of  Andrew  &  James 
Caldwell,  who  at  one  time  were  considerably  indebted  to  them. 
Upon  the  plea  of  nulla  bona,  it  appeared  that  a  letter  had  been 
written  authorizing  Hugh  Moore  to  receive  this  del)t,  and  apply 
it  towards  payment  of  a  debt  due  to  Moore  &  Johnston  ;  and  the 
jury,  under  the  direction  of  the  court,  being  satisfied  that  it 
amounted  to  an  equitable  appropriation  of  the  demand,  found 
that  the  garnishees  had  no  effects  in  their  hands  due  to  Yance, 
Caldwell  &  Yance.  This  court  sanctioned  the  verdict  by  their 
judgment.  In  like  manner  a  bond  made  assignable  in  its  first 
creation,  which  requires  by  our  act  of  assembly  the  ceremony  of 
a  seal  and  two  witnesses  to  authorize  the  assignee  to  maintain 
a  suit  in  his  own  name,  if  transferred  bond  fide,  without  seal 
or  witnesses,  is  not  liable  to  be  attached  for  the  debt  of  the 
obligee  resident  in  a  foreign  country.  This  appears  perfectly 
plain."  1 

§  529.  If  a  creditor  attach  goods  which  appear  as  the  property 
of  the  defendant,  but  wherein  another  person  has  nevertheless 
an  interest, ~which  he  communicates  to  the  creditor  before  the 
attachment  is  laid,  the  creditor  is  bound  to  refund  to  such  person 
his  proportion  of  the  money  recovered  under  the  attachment, 
notwithstanding  the  judgment  of  a  competent  court  decreed  the 
whole  to  the  plaintiff  as  the  property  of  the  defendant.^ 

§  530.  Where  it  is  provided  by  law,  that,  when  a  garnishee 
discloses  an  assignment  of  the  debt  to  a  third  person,  the  supposed 
assignee  may  be  cited  to  become  a  party  to  the  suit,  in  order  to 
test  the  validity  of  the  assignment,  a  judgment  declaring  the 
assignment  iiivalid  is  binding  on  the  garnishee  ;  and  a  judgment 
against  him  after  a  trial  of  the  supposed  assignment,  would  bar  a 
subsequent  action  against  him  by  the  assignee.^ 

§  531.  The  rights  of  conflicting  assignments  of  the  same  effects 
cannot  be  tried  in  an  attachment  suit.  Where,  therefore,  it  ap- 
peared that  there  was  an  assignment  to  one  person  before  the 

1  United  States  v.  Vaughan,  3  Binney,  394. 

2  Bank  of  N.  America  v.  M'Call,  3  Binney,  338. 

8  Fisk  I'.  Westou,  5  Maine,  410 ;  Born  v.  Staaden,  24  Illinois,  320. 

24  [369] 


§  534  GARNISHEE'S   LIABILITY   AS   AFFECTED  [clIAI'.  XXIV. 

attachment,  and  to  anotlier  afterward,  it  was  held,  that  the  conflict 
between  the  two  assignments  was  an  appropiate  matter  for  the 
determination  of  a  court  of  equity  ;  but  that,  so  far  as  the  attach- 
ment was  concerned,  their  existence  only  showed  more  fully  that 
the  defendant  had  no  attachable  interest,  and  the  garnishee  was 
discharged.* 

§  532.  II.  Liens.  In  its  most  extensive  signification  the  term 
lien  includes  every  case  in  which  real  or  personal  property  is 
charged  with  the  payment  of  any  debt  or  duty  ;  every  such 
charge  being  denominated  a  lien  on  the  property.  In  a  more 
limited  sense,  it  is  defined  to  bo  a  right  of  detaining  the  property 
of  anotlier  until  some  claim  be  satisfied.'^  The  law  recognizes  two 
species  of  lien,  particular  liens  and  general  liens.  Particular  liens 
are,  where  a  person  claims  a  right  to  retain  goods,  in  respect  of 
labor  or  money  expended  on  such  goods  ;  and  these  liens  are 
favored  in  law.  General  liens  are  claimed  in  respect  of  a  general 
balance  of  account ;  and  are  founded  on  express  agreement,  or 
are  raised  by  implication  of  law,  from  the  usage  of  trade,  or  from 
the  course  of  dealing  between  the  parties,  whence  it  may  be  in- 
ferred that  the  contract  in  question  was  made  with  reference  to 
their  usual  course  of  dealing.^ 

§  533.  If  a  garnishee  having  property  of  the  defendant  in  his 
possession,  has  a  valid  lien  thereon,  as  the  defendant  could  not 
take  the  property  from  him  without  discharging  the  lien,  so 
neither  can  a  creditor  take  it  by  garnishment.*  Therefore,  where 
a  garnishee  to  whom  goods  were  consigned,  had,  before  the  gar- 
nishment, verbally  agreed  to  pay  to  a  third  person,  out  of  the  pro- 
ceeds of  the  consignment,  a  bill  of  exchange  drawn  by  the 
consignor  on  the  garnishee,  it  was  held,  that  the  promise  was 
binding  on  him,  and  gave  him  a  lien  on  the  goods,  which  entitled 
him  to  retain  them  for  his  indemnity.^ 

§  534.   In  South  Carolina,  before  the  enactment  of  the  statute 

1  Shattuck  V.  Smith,  16  Vermont,  132. 

2  Bouvicr's  Law  Dictionary. 

8  2  Wlieatou's  Selwyn,  4th  Am.  Ed.  537. 

*  Nathan  v.  Giles,  5  Taunton,  558 ;  Kirkman  v.  Hamilton,  9  Martin,  297  ;  Kolen  v. 
Crook,  5  Humphreys,  312 ;  Smith  v.  Clarke,  9  Iowa,  241. 
6  Grant  v.  Shaw,  16  Mass.  341 ;  Curtis  v.  Norris,  8  Pick.  280. 
[370J 


CHAP.  XXIV.]  BY   ASSlGNilENTS  AND   LIENS.  §  535 

to  be  referred  to  in  the  next  section,  it  was  held,  that  to  enable  a 
garnishee  to  retain  goods  of  the  defendant  in  his  hands,  it  is  not 
necessary  that  he  should  prove  himself  to  be  a  creditor  entitled 
to  bring  an  action ;  but  is  enough  if  he  establish  a  lieu,  even  for 
outstanding  liabilities  incurred  for  the  defendant.  And  it  was 
there  decided,  that  wliere  an  agent  in  that  State,  for  a  commission, 
negotiates  exchanges  for  a  house  in  New  York,  buys  bills  on 
Europe  for  them,  and,  to  raise  funds  for  that  purpose,  draws  and 
sells  bills  upon  them  at  home  for  corresponding  amounts  ;  some 
of  which  they  accept,  and  others  they  do  not,  and  the  bills  are 
protested  ;  such  agent  has  a  lien  on  any  funds  or  securities  which 
come  to  his  hands  for  his  principal,  to  secure  himself  against  his 
outstanding  liabilities,  although' he  have  not  in  fact  paid  any  of 
the  bills.  And  there  is  no  difference  between  bills  accepted  and 
not  paid,  and  bills  not  accepted.  The  lien  extends  to  all  equally. 
Nor  does  it  make  any  difTerence,  that  the  funds  and  securities 
came  to  hand  after  the  liability  is  incurred,  and  therefore  were  not 
looked  to  as  an  indemnity  at  the  time.^ 

§  535.  In  South  Carolina,  a  statute  provides,  that  if  the  de- 
fendant, whose  property  is  attached  in  the  hands  of  a  garnishee, 
be  really  and  truly  indebted  to  the  garnishee,  then  the  garnishee, 
if  his  possession  of  the  defendant's  property  was  obtained  legally 
and  bond  fide,  without  any  tortious  act,  shall  be  first  allowed  his 
own  debt.  In  such  case,  the  garnishee  is  there  styled  "  a  creditor 
in  possession  "  ;  and  the  effect  of  the  statute  is  simply  to  give  him 
a  lien  on  the  property  in  his  hands  for  any  debt  due  from  the  de- 
fendant to  him,  whether,  by  the  general  principles  of  law,  he  would 
have  such  lien  or  not.  But  the  garnishee's  claim  must  be  a  debt ; 
not  a  mere  liability,  in  virtue  of  which  he  may  or  may  not  be 
eventually  subjected  to  loss.  Therefore,  it  was  held,  that  a  surety 
not  having  paid  the  debt  of  the  principal,  is  not  entitled,  when 
summoned  as  garnishee  of  the  principal,  to  hold  the  effects  in  his 
hands  as  a  creditor  in  possession. ^ 

Under  this  statute,  this  case  arose.  A.  sent  an  order  to  B.  to 
purchase  on  his  account  a  quantity  of  cotton,  which  B.  purchased 
and  forwarded ;  the  last  of  it  being  sent  on  the  3d  of  September. 
On  the  4th,  7th,  and  8th  of  September,  B.  drew  bills  on  A.,  pay- 
able on  the  25th  of  November,  which  were  accepted,  but  were 

1  Bank  v.  LevA-,  1  McMuUan,  431.  2  Yongue  v.  Linton,  6  Richardson,  275 

[3711 


§  538  GARNISHEE'S   LUBILITY   AS    AFFECTED  [CIIAP.  XXIV. 

protested  for  non-payment.  On  the  2Tth  and  28th  of  November, 
C.  paid  the  bills  for  B.'s  honor,  and  claimed  and  received  reim- 
bursement from  B.  On  the  r)th  of  December,  a  ship  of  A.'s,  which 
had  previously  come  consigned  to  B.,  was  attached  by  a  creditor 
of  A.,  and  B.  claimed  to  hold  the  ship  as  a  creditor  in  possession. 
Two  questions  were  raised :  1.  Whether,  when  the  attachment 
was  levied,  A.  was  indebted  to  B.  ?  and,  2.  Whether  B.  had  then, 
as  consignee  of  the  ship,  such  possession  of  her  as  to  entitle  him 
to  the  benefit  of  the  statute  ?  Both  questions  were  decided  in  the 
affirmative ;  and  the  attachment  declared  inoperative  as  against  B.^ 

§  536.  Whether  the  garnishee  has  a  right  to  hold  the  defend- 
ant's proi)erty  against  an  attaclnncnt,  must  depend  upon  the  actual 
existence  of  a  lien,  as  contradistinguished  from  mere  possession. 
If  he  have  no  lien,  legal  or  equitable,  nor  any  right,  as  against  the 
owner,  by  contract,  by  custom,  or  otherwise,  to  hold  the  property 
in  security  of  some  debt  or  claim  of  his  own  ;  if  he  has  a  mere 
naked  possession  of  the  property  without  any  special  j)roperty  or 
lien ;  if  the  defendant  is  the  owner,  and  has  a  present  right  of 
possession,' so  that  he  might  lawfully  take  it  out  of  the  custody 
of  the  garnishee ;  the  garnishee  cannot  claim  to  satisfy  his  debt 
out  of  it  before  the  attachment  can  reach  it;''  but  must  attach  it, 
as  any  other  creditor,  for  his  debt.^ 

§  537.  Where  a  garnishee  has  in  his  possession  real  and  per- 
sonal property  of  the  defendant,  both  of  which  are  liable  to  him 
for  a  debt  of  the  defendant,  he  cannot,  in  the  absence  of  fraud,  be 
subjected  as  garnishee  in  respect  of  tiie  personalty,  and  thereby 
compelled  to  look  to  the  real  estate  for  his  security.* 

§  538.  III.  Mortgages  and  Pledges.  A  pledge  or  pawn  is  a 
bailment  of  personal  property,  as  a  security  for  some  debt  or  en- 
gagement. A  mortgage  of  goods  is  distinguishable  from  a  mere 
pawn.  By  a  grant  or  conveyance  of  goods  in  gage  or  mortgage, 
the  whole  legal  title  passes  conditionally  to  the  mortgagee ;  and 
if  the  goods  are  not  redeemed  at  the  time  stipulated,  the  title  be- 
comes absolute  at  law,  although  equity  will  interfere  to  compel  a 

1  Mitchell  v.  Byrne,  6  Richardson,  171. 

2  Allen  V.  Hall^  5  :\retca)f,  26.3. 

8  Allen  V.  Megguire,  15  Mass.  490;  Bailey  v.  Ross,  20  New  Hamp.  302. 
*  Scofield  r.  Sanders,  25  Vermont,  181 ;  Goddard  v.  Hapgood,  Ibid.  351 
[372] 


CHAP.  XXIV.j  BY   ASSIGNMENTS  AND   LIENS.  §  539 

redemption.  But  in  a  pledge,  a  special  property  only  passes  to  the 
pledgee,  the  general  property  remaining  in  the  pledger.  There  is 
also  another  disthiction.  In  the  case  of  a  pledge  of  personal  prop- 
erty, the  right  of  the  pledgee  is  not  consummated,  except  by  pos- 
session ;  and  ordinarily  when  that  possession  is  relinquished,  the 
right  of  the  pledgee  is  extinguished,  or  waived.  But  in  the  case 
of  a  mortgage  of  personal  property,  the  right  of  property  passes 
by  the  conveyance  to  the  pledgee,  and  possession  is  not,  or  may 
not  be,  essential  to  create,  or  to  support  the  title.^ 

§  539.  The  principle  has  been  before  laid  down,  that  a  garnishee 
can  be  rendered  liable  in  respect  of  the  defendant's  property  in  his 
hands,  only  when  the  property  is  capable  of  being  seized  and  sold 
under  execution.  Upon  general  principles,  and  in  the  absence 
of  statutory  interposition,  an  execution  cannot  be  levied  on  a  mere 
equity.  The  interest  of  a  pledger  or  mortgagor  in  personalty 
pledged  or  mortgaged,  is  the  mere  equitable  right  of  redemption, 
by  paying  the  debt,  or  performing  the  engagement,  for  the  payment 
or  performance  of  which  the  property  was  pledged  or  mortgaged. 
Hence,  personalty  so  situated  is  not  subject  to  sale  under  execu- 
tion, and,  therefore,  not  attachable.^ 

It  follows  necessarily  that  the  pledgee  or  mortgagee  of  person- 
alty cannot  be  held  as  garnishee  of  tiie  pledger  or  mortgagor,  while 
the  property  is  the  subject  of  the  pledge  or  mortgage.^  Nor,  if 
there  be  no  agreement  that  he  shall  sell  the  property  to  pay  the 
debt  for  which  it  is  pledged  or  mortgaged,  can  he  be  compelled  to 
do  it ;  *  but  if  there  be  such  an  agreement,  and  the  property,  in 
pursuance  thereof,  be  sold,  any  surplus  remaining  after  the  pay- 
ment of  the  debt  secured  may  be  reached  by  garnishment.^  But 
in  order  to  the  mortgagee's  immunity  from  liability  as  garnishee 
of  the  mortgagor,  tlie  mortgage  must  be  for  a  deljt  incurred  or 
liability  encountered  before  the  garnishment.     While  it  is  con- 

1  Story  on  Bailments,  4th  Ed.  §  286,  287. 

2  Brtdlam  i-.  Tucker,  1  Pick.  389;  Andrews  v.  Ludlow,  5  Ibid.  28;  Holbrook  v.  Ba- 
ker, 5  Maine,  309;  Haven  r.  Low,  2  New  Hamp.  13;  Picquct  r.  Swan,  4  Mason,  443; 
Thompson  r.  Stevens,  10  Maine,  27  ;  Sargent  r.  Carr,  12  Ibid.  396;  Lyle  v.  Barker,  5 
Binney,  437  ;  Hall  v.  Page,  4  Georgia,  428. 

8  Badlam  v.  Tucker,  1  Pick.  389;  Central  Bank  v.  Prentice,  18  Ibid.  396;  Whit- 
ney r.  Dean,  5  New  Hamp.  249  ;  Hudson  v.  Hunt,  Ibid.  538 ;  Howard  v.  Card,  6  Maine, 
353 ;  Callender  v.  Furbish,  46  Ibid.  226  ;  Kergin  v.  Dawson,  6  Illinois  (1  Oilman),  86  ; 
Patterson  v.  Harland,  12  Arkansas,  158. 

*  Badlam  v.  Tucker,  1  Pick.  389 ;  Howard  v.  Card,  6  Maine,  353. 

5  Badlam  r  Tucker,  1  Pick.  389. 

[373] 


§  540  GARNISHEE'S   LIABILITY.  —  ASSIGNMENTS.      [ciIAP.  XXIV. 

ceded  that  a  mortgage  may  be  valid,  containing  a  stipulation  for 
securing  future  advances  and  liabilities  on  the  part  of  the  mortga- 
gee, yet  it  will  secure  only  .such  as  have  been  made  or  assumed 
before  other  interests  have  intervened.  After  the  mortgagee  has 
been  subjected  to  garnishment  in  an  action  against  the  mortgagor, 
no  new  and  independent  indol)tment,  either  by  moneys  advanced 
or  liabilities  assumed,  will  defeat  the  lien  of  the  attachment,  or 
have  a  priority  to  the  same  under  the  mortgage.^ 

§  540.  Any  rulinciuishmi'Mt,  however,  of  a  lien,  will  ojten  the  way 
for  the  garnishment  of  the  jtb'dgee.  Therefore,  where  a  creditor 
who  had  property  in  his  possession  which  he  supjKxsed  to  be  pledged 
to  him  for  the  ]):iyment  of  a  debt  due  him,  was  summoned  as  gar- 
nishee of  his  debtor,  and  afterwards  caused  the  property  to  bo 
attached  by  a  writ  in  his  own  favor ;  it  was  held,  that  he  had  re- 
linquished the  lien  he  claimed  to  have  had  by  the  delivery  of  the 
property  as  a  pledge,  and  was,  therefore,  subject  to  garnishment.* 

»  Barnard  r.  Moorc,  8  Allen,  273.  «  Swett  v.  Drown,  5  Pick.  178. 

[374] 


CHAP.  XXV.]  GARNISHEES   LIABILITY   AS   A  DEBTOR.  §  543 


CHAPTER    XXV. 

THE   garnishee's   LIABILITY   AS    A    DEBTOR   OP   THE-  DEFENDANT.  — 
GENERAL   VIEWS.  —  DIVISION    OP   THE   SUBJECT. 

§  541.  We  reach  now  the  consideration  of  a  garnishee's  liahility 
in  resi.ect  of  his  indebtedness  to  the  defendant,  — a  field  of  inqniiy 
coextensive  with  that  over  which  we  have  just  passed,  in  relation 
to  the  kindred  topic  of  his  liability  in  regard  to  property  of  the 
defendant  in  his  possession.  The  two  subjects  will  be  seen  to  have 
mai»y  principles  in  common.  For  instance,  we  have  seen  that, 
except  in  cases  of  fraudulent  transfers,  the  garnishee's  liability  for 
the  defendant's  property  in  his  possession,  depends  much  upon 
whether  the.  defendant  has  a  right  of  action  against  him  for  the 
property.  So,  in  order  to  charge  a  garnishee  as  a  debtor  of  the 
defendant,  it  is  a  general  principle  — subject,  of  course,  to  excep- 
tions—that  the  defendant  shall  have  a  cause  of  action,  present  or 
future,  against  him.^ 

S  'A2.  Pending  the  garnishment,  the  rights  of  the  defendant 
are  excluded  and  extinguish^,  only  to  the  extent  that  may  be 
necessary  for  the  ultimate  sulyection  of  the  debt  or  property  m 
the  garnishee's  hands  to  the  operation  of  the  attachment.  For 
every  purpose  of  making  demand,  or  securing  his  claim  by  attach- 
ment, or  otherwise,  the  rights  of  the  defendant  remain  unimpaired 
by  the  pendency  of  the  garnishment.  They  subsist,  however,  in 
subordination  to  any  lien  created  by  that  proceeding.^ 

§  543.  By  the  custom  of  London  a  plaintiff  may,  by  garnish- 
ment, attach,  in  his  own  hands,  money  or  goods  of  the  defendant. 

1  Maine  F.  &  M.  Ins.  Co.  .•.  Weeks.  7  Ma.ss.  4-18;  Wliitc  v.  Jenkins,  16  Il.id.  62 ; 
Bri.Mlen  v.  tiill.  Il.i.l.  5-22  ;  Run.llet  v.  Jordan.  .3  Maine,  47  ;  Haven  v.  Wcntworth  2  New 
Ham,..  93  ;  A.la.us  v.  Barrett,  Ibid.  374  ;  Pi,.-r  v.  Piper,  Il.i.l.  ^^^  i  ^^eenleaf  t-^  Pcrrm 
8  U.id.  273;  Paul  v.  Paul,  10  Il.id.  117;  Hut.hins  v.  Hawley,  9  Vermont  295 ;  Hoyt 
V  Swift.  13  Ihi.l.  129;  Walke  r.  MeOehee,  11  Alabama,  273;  Ilarrcll  v.  ^V  hitman  19 
Ibid.  135;  Cook  V.  Walthall,  20  Ibid.  3.34  ;  Kettle  v.  Harvey.  21  Vermont,  301  ;  1  at. 
ton  r.  Smith,-  7  Iredell,  43S  ;  Limdic  .-.  Bradford,  26  Alabama,  512  ;  Hall  i-.  Magee,  27 
Ibid.  414;  MeGehee  i-.  Walke,  15  Ibid.  183;  Lewis  r.  Smith,  2  Craneh,  C.  0.  571. 

a  Hicks  v.  Gleason,  20  Vermont,  139.  ,.„_„-, 

[37o] 


§  543  GARNISHEE'S   LIABILITY   AS   A   DEBTQR.  [cHAP.  XXV. 

But  cau  a  plaintifiF  charge  himself  as  garnishee,  in  respect  of  a 
debt  due  from  him  to  the  defendant,  or  can  several  plaintiffs  sum- 
mon one  of  their  own  number,  with  a  view  so  to  charge  him  ? 
This  question,  in  the  latter  aspect,  came  before  the  Supreme  Court 
of  Massachusetts,  which  declined  expressly  deciding  it,  because  its 
decision  was  not  necessary  in  the  case,  but  gave  a  very  distinct 
intimation  of  tlicir  views  in  the  negative ;  considering  it  a  novel 
experiment,  and  quite  distinguishable  from  the  case  of  a  plaintiff 
holding  money  or  goods  of  the  defendant,  and  attaching  them  in 
his  own  hands.i  jj^  Louisiana,  however,  it  was  held,  that  it  might 
be  done.2  In  Tennessee,  also,  where  the  proceeding  by  attachment 
against  non-residents  is  in  chancery,  this  case  arose.  A.,  B.,  &  C, 
as  partners,  were  indebted  to  D.,  by  note.  D.  sued  on  the  note, 
and  obtained  judgment  against  A.  &  B.,  but  not  against  C,  who 
■was  a  non-resident,  and  issued  execution,  which  was  returned  nulla 
bona;  A.  &  B.  being  insolvent.  C.  held  a  note  made  to  him  by 
D.  &  E.,  which,  to  avoid  the  claims  of  creditors,  he  transferred  by 
assignment  to  F.,  a  resident,  without  consideration  and  for  the 
benefit  of  C.     Suit  was  brought  on  this  note  by  F.,  and  judgment 

»  Belknap  v.  Gibbens,  13  Mctcalf,  471.  Shaw,  C.  J.:  "Nor  have  wc  thonpht  it 
necessary  to  express  an  opinion  npon  another  question,  consiilered  in  the  arj^iiment,  to 
wit,  whetlier  a  plaintiff  can  summon  himself,  or  whether  several  plaintiffs  can  summon 
one  of  their  own  number,  as  a  trustee.  It  is,  as  far  as  wc  know,  a  novel  exj»eriment. 
The  theory  of  the  trustee  suit,  the  provisions  for  securing  the  relative  ri<;hts  of  plain- 
tiff and  trustee,  the  rights  of  appeal,  and  the  general  tenor  of  the  law,  seem  to  regard 
the  suit,  as  between  plaintiff  and  trustee,  as  an  adversary  proceeding,  and  to  bring  the 
case  within  the  rule,  that  a  person  cannot  sue  himself,  or  be  plaintiff  and  defendant  in 
the  same  case.  The  ingenious  argument  for  the  i)laintiff  goes  mainly  on  the  ground, 
that  the  trustee  process  is  in  the  nature  of  process  in  rem,  and  therefore  it  is  quite  im- 
material whether  the  estate  and  effects  to  be  aflected  by  the  attachment  are  in  the  hands 
of  the  plaintiffs,  or  one  of  them,  or  in  those  of  a  third  person.  This  is  true  in  regard 
to  that  branch  of  the  statute  which  is  designed  to  reach  goods  and  chattels,  so  deposited 
that  they  cannot  be  reached  by  the  ordinary  process  of  attachment;  but  in  such  case, 
it  is  wholly  unnecessary,  because  the  plaintiff,  holding  any  such  goods,  which  are  at- 
tachable, can  deliver  tlicm  to  the  attaching  officer ;  as  every  trustee  is  obliged  to  do  on 
execution,  when  he  is  charged  on  that  ground.  It  is  upon  the  other  branch  of  the 
statute,  affecting  'credits,'  that  the  difficulty  arises,  where  the  purpose  is  to  charge  the 
trustee  as  the  debtor  of  the  defendant.  The  trustee  is  regarded  as  in  some  measure  in 
privity  with  the  defendant,  and  guardian  of  his  rights.  If,  in  his  view,  the  judgment 
charo-ing  him  as  trustee  is  erroneous,  and  injurious  to  the  defendant,  it  is  his  duty  to 
appeal  and  take  the  opinion  of  this  court.  But  in  the  present  case,  it  would  be  an  ap- 
peal by  the  trustee  from  a  judgment  in  f\ivor  of  the  plaintiffs,  he  being  one.  Again; 
if  he  fail  to  pay  over  on  execution,  a  scire  facias  must  be  brought  by  the  trustee  and  his 
partners,  to  compel  the  trustee  to  pay  the  debt  out  of  his  own  effects.  In  theory  of 
law,  it  is  an  adversary  suit ;  there  is  a  conflict  of  rights  between  the  plaintiff  and  trus- 
tee, bringing  the  case  within  the  ordinaiy  rule  in  regard  to  opposing  parties." 

2  Grayson  v.  Veeche,  12  Martin,  688;  Richardson  v.  Gumey,  9  Louisiana,  285. 

[376] 


CHAP.  XXV.]  GENERAL  VIEWS.  §  545 

obtained  against  D.  &  E.,  and  all  the  money  paid  to  C,  except  an 
amount  equal  to  the  claim  of  D.  against  C.  on  the  note  of  A.,  B., 
&  C.  "While  matters  were  in  this  position,  D.  filed  his  bill  in 
chancery  against  C.  and  F.,  to  subject  the  indebtedness  of  D.  &  E. 
to  C,  to  the  payment  of  D.'s  debt  to  C,  and  the  court  sustained 
the  bill.i 

§  544.  That  upon  which  the  garnishment  operates  in  this  class 
of  cases  is  credits.  The  term  credit,  in  this  connection,  is  used 
in  the  sense  in  which  it  is  understood  in  commercial  law,  as  the 
correlative  of  debt.  Wherever,  therefore,  there  is  a  credit,  in  this 
sense,  there  is  a  debt,  and  without  a  debt  there  can  be  no  credit.^ 
It  was  at  one  time  attempted  to  hold  by  garnishment,  not  only 
deljts  due  from  the  garnishee,  but  debts  of  others  to  the  defendant, 
the  evidence  of  which,  as  notes,  bonds,  or  other  chases  in  action, 
might  be  in  the  garnishee's  hands  ;  but  as  it  is  well  settled  that 
cfioses  in  action  are  not  attachal)le,^  the  attempt  failed,  and  it  was 
held,  that  credits  included  only  debts  due  from  the  garnishee  to 
the  defendant.* 

§  545.  We  have  said  that  it  is  usually  necessary,  in  order  to 
charge  a  garnishee,  that  tlie  defendant  should  have  a  cause  of 
action  against  liim.  It  will  of  course  be  understood  that  it  is  not 
every  cause  of  action  that  will  render  a  garnishee  liable,  but  only 

1  Boyd  V.  Bayless,  4  Humphreys,  386.  The  following  are  the  pounds  on  which  the 
bill  was  sustained  :  "  The  sinfjlc  question  in  this  case  is,  whether  a  complainant,  to 
whom  a  non-resident  is  indebted,  ciin,  by  virtue  of  the  provisions  of  the  Act  of  1835-6, 
obtain  a  decree  apiinst  his  non-resident  debtor,  where  the  fund  to  be  attached  is  in  the 
hands  of  the  complainant  himself,  or  the  debt  or  chose  in  action  l»elon;;in'^  to  the  non- 
resident is  due  from  the  complainant.  We  think,  under  such  circumstances  as  are  dis- 
closed in  this  ca.sc,  relief  will  be  granted  by  virtue  of  the  provisions  of  that  act.  If  the 
non-resident,  indeed,  had  with  him  the  chose  in  action  or  note,  nothing  could  be  done. 
But  where  that  is  here,  deposited  in  the  hands  of  an  agent,  or  transferred  to  a  mere 
trustee  for  his  l)enefit,  the  attachment  will  lie,  and  the  fact  that  the  complainant  owes 
the  money,  any  more  than  a  third  jjerson,  will  not  have  the  effect  to  obstruct  the  remedy 
given  V>y  the  statute.  If  the  note  had  been  given  by  E.  alone  to  C,  and  had  been  by  C. 
assigned  as  stilted  to  F.,  it  would  not  be  doubted,  by  any  one,  for  a  single  moment,  that 
this  bill  might  have  l>een  tiled.  But  the  fact  that  it  was  given  by  D.  &  E.  can  make 
no  difference  in  the  view  of  a  court  of  chancery ;  it,  to  be  sure,  in  order  to  make  the 
remedy  effectual,  under  the  circumstances  of  this  case,  requires  that  the  court  should 
enjoin  the  judgment  of  F.,  assignee,  against  D.  &  E.  When  the  rights  of  the  parties 
are  determined,  that  becomes  the  appropriate  mode  of  relief  in  this  particular  case." 
See  Arledge  v.  White,  1  Head,  241. 

-  Wentworth  v.  Whittemore,  1  Mass.  471 ;  Wilder  v.  Bailey,  3  Ibid.  289. 

3  Ante,  §  481. 

*  Lupton  V.  Cutter,  8  Pick.  298. 

*  [3771 


§  545  GARNISHEE'S   LIABILITY   AS   A   DEBTOR.  [CHAP.  XXY. 

a  cause  of  action  for  the  recovery  of  a  debt.  Indeed,  the  rule 
announced  in  Alabama  may  be  considered  as  autlioritative,  that  no 
judgment  can  be  rendered  against  a  garnisliee,  wl^en  there  is  not 
a  clear  admission  or  proof  of  a  legal  debt  due  or  to  become  duo 
to  the  defendant ;  ^  a  debt  for  which  the  defendant  might  maintain 
an  action  of  debt  or  indebitatus  assumpsit.'^  Therefore,  where  a 
stockholder  in  a  corporation  was  summoned  as  garnishee,  with  a 
view  to  subject  him  to  liability  on  account  of  the  unpaid  portion 
of  his  stock  ;  and  it  appeared  that  he  liad,  before  the  garnishment, 
paid  all  the  calls  which  had  been  made  upon  the  stock ;  it  was 
held,  that  he  could  not  be  charged,  because  he  was  not  liable  to  tho 
cor[)oration  until  a  call  should  be  made  on  him  for  payment.^  So, 
where  the  municipal  authorities  of  a  city  adopted  a  resolution  lay- 
ing out  a  public  way,  and  embracing,  among  other  things,  a  reso- 
lution that  a  certain  sum  should  be  awarded  and  paid  to  A. ;  it  was 
held,  that  this  was  no  debt  of  the  city,  for  which  A.  could  maintain 
an  action,  and  therefore  that  the  city  could  not  be  charged  as  his 
garnishee.*  So,  where  A.  received  from  B.  a  sum  of  money,  and  iu 
consideration  thereof  executed  to  B.  a  bond,  with  sureties,  to  make 
to  him,  on  or  before  a  day  named,  a  title  to  certain  land ;  and  before 
the  time  set  for  making  the  title,  A.  was  summoned  as  garnishee  of 
B.  He  answered  stating  the  facts,  and  averring  that  he  had  not 
title  to  tlie  land,  and  could  not,  therefore,  make  title  thereto  to  B. 
It  was  sought  to  charge  him  as  garnishee,  in  respect  of  his  obli- 
gation to  return  the  money  to  B.  ;  but  the  court  held,  that  he 
was  not  B.'s  debtor  for  that  sum,  because  the  time  named  in  tho 
bond  for  making  the  title  had  not  yet  arrived,  and  A.,  if  he  failed 
to  make  the  title,  would  be  liable  on  his  bond  for  damages,  and  B. 
might  not  choose  to  receive  back  the  sum  he  had  paid,  as  a  dis- 
charge of  his  claim  against  A.^  So,  where  a  constable  sold  of  a 
defendant's  property  more  than  sufficient  to  pay  an  execution, 
and  took  the  note  of  the  purchaser  for  the  surplus,  payable  to 
the  defendant,  but  without  the  defendant's  consent,  who  did  not 
receive  the  note  ;  it  was  held,  that  the  purchaser  could  not  be 

1  Pressnall  v.  ^labry,  3  Porter,  105. 

2  Walke  V.  McG^hee,  11  Alabama,  273  ;  Harrell  v.  "Whitman,  19  Ibid.  135;  Cook  v. 
Walthall,  20  Ibid.  334  ;  Lundie  v.  Bradford,  26  Ibid.  512  ;  Hall  v.  Magee,  27  Ibid.  414; 
Nesbitt  V.  Ware,  30  Ibid.  68 ;  Powell  r.  Summons,  31  Ibid.  552. 

8  Bingham  v.  Rushing,  5  Alabama,  403. 

*  Fellows  V.  Duncan,"l3  Metcalf,  332 ;  Geer  v.  Chapel,  11  Gray,  18.  V 

6  Grace  i'.  Maxtield  6  Humphreys,  328. 
[378]  * 


CHAP.  XXV.]  GENERAL   VIEWS.  §  546 

charo-ed  as  garnishee  of  the  defendant,  because  the  relation  of 
debtor  and  creditor  did  not  exist  between  them.^  So,  where  a 
son,  from  filial  duty,  took  his  father  and  his  family,  who  were 
poor,  and  had  no  other  home,  to  his  own  house,  and  there  sup- 
ported them  ;  and  the  father  labored  for  the  son  while  so  living 
with  him,  and  his  services  were  worth  more  than  the  support 
furni^^ht'd  ;  but  he  had  never  claimed  any  further  compensation, 
and  the  son  had  not  expected  to  make  any  ;  it  was  held,  that  the 
son  was  not  chargeable  as  garnishee  of  the  father.^  So,  where  a 
clerk  of  a  court  issued  an  attachment,  under  which  property  of 
the  defendant  was  seized  and  sold,  and  the  proceeds  of  the  sale 
were  paid  into  the  hands  of  the  clerk  ;  and  it  was  afterwards 
decided  that  the  clerk  had  no  authority  to  issue  the  writ,  and  that 
all  the  proceedings  under  it  were  void;  and  after  that  decision 
was  given,  creditors  caused  the  clerk  to  be  garnished,  to  subject 
the  j)rocet'ds  of  the  sale  in  his  hands  to  their  claims  ;  it  was  de- 
cided that  the  clerk  was  not  a  debtor  of  the  defendant.^ 

§  546.  As  we  have  seen,*  in  regard  to  the  liability  of  a  gar- 
nishee for  property  of  the  defendant,  there  must  be  privity  of 
contract  and  of  interest  between  him  and  the  defendant,  in  order 
to  his  being  charged.  The  same  rule  ajjplies  to  debts.  Therefore, 
where  the  agent  of  a  foreign  insurance  company  was  garnished, 
and  it  aj^peared  that  he  had  signed  a  policy  of  insurance,  on 

1  Turner  r.  Armstrong,  9  Yerger,  412. 

«  Cobb  r.  Bishop,  27  Vermont,  624. 

»  Lewis  r.  Dtibose,  4  Kichardson.  219.  The  grounds  of  the  decision  were  as  follows 
"  The  liefundants  in  the  attachment  may  sue  for  and  recover  the  property  sold  if  it  can 
be  found,  or  may  bring  an  action  for  the  tort  committed  ;  or  they  may  waive  the  tort 
and  sue  the  ck-rk  in  assumpsit  for  the  money  arising  from  the  sale  of  the  property 
under  the  void  attachment.  But  l)ecanse  the  owners  of  the  property  wrongfully  sold, 
might  maintain  an  action  of  a.ssumpsit  to  recover  the  proceeds  of  the  sale,  it  docs  not 
folUjw  that  the  money  can  be  attached  by  the  creditors.  The  creditors  have  no  right 
to  waive  the  tort,  or  to  surrender  the  right  to  recover  back  the  proj^crty,  or  to  release 
the  damages  against  the  tort-feju«or.  Those  arc  rights  which  appertain  to  the  owner 
of  property  alone,  and  his  creditors  cannot  defeat  them  by  bringing  a  garnishment 
proceeding  against  him  who  may  have  the  funds  arising  from  the  sale  of  the  property. 
Until  the  owner  has  made  his  election  to  sue  for  the  money,  which  may  be  done  by 
bringing  an  action  for  it,  the  person  having  the  money  cannot,  in  any  just  sense,  be 
deemed  his  debtor.  To  allow  the  money  to  be  taken  in  attachment,  might  be  produc- 
tive of  confusion  and  wrong.  It  could  not  prevent  the  owners  of  the  profK^rty  from 
suing  for  its  recovery,  or  for  the  damages,  and  would  yet  concede  to  them  the  benefit 
of  the  appropriation  of  the  money  to  the  payment  of  their  debts,  and  leave  the  clerk 
who  received  the  money  without  the  means  of  reimbursing  the  person  against  whom 
an  action  might  be  brought." 


^  547  GARNISHEE'S   LIABILITY   AS   A   DEBTOR.  [CIIAP.  XXV. 

behalf  of  the  company,  on  propqrty  of  the  defendaut,  which  was 
afterwards  destroyed  by  fire,  it  was  held,  that  he  could  not  be 
charged,  and    the  court   said :    "  The   respondent  is  simply  the 
agent  of  persons   in  a  foreign  country.     He  contracted  in  that 
character  with   the  defendant  on   behalf  of  his  principals,  and 
acknowledges   nothing   due  from   them  to  the  defendant.      The 
demand  of  the  defendant  is  upon  the  copartnership  in  London, 
and  if  he  had  by  action  maintained  that  demand,  and  recovered 
a  judgment  against  the  copartnership,  it  would  not  follow  that  the 
respondent  was  answerable  as  his  trustee.     Indeed,  no  state  of 
facts,  which  could  arise  out  of  the  transaction  stated  by  hun, 
could  fix  him  as  trustee  of  the  defendant."  ^     So,  where  certain 
persons  signed  a  contract  as  a  building  committee  of  a  religious 
congregation  ;  they  were   decided   not  to  be  liable  as  garnishees 
of  the  builder,  because  they  were  mere  agents.^     So,  where  a 
person  purchased  property  at  an  administrator's  sale,  and  gave  his 
note  therefor  to  the  administrator,  as  such,  it  was  held,  that  ho 
could  not  be  charged  as  garnishee  of  the  payee  of  the  note,  on 
account  of  the  payee's  individual  debt ;  the  money,  though  pay- 
able to  him,  not  being  due  to  him  in  his  individual,  but  in  his 
representative,  capacity.^ 

§  547.  A  legal  debt,  as  contradistmguished  from  an  equitable 
demand,  is  that  alone  which  will  authorize  a  judgment  against  a 
garnishee,  at  least  under  any  judicial  organization  which  separates 
legal  and  equitable  jurisdictions.  Therefore,  where  it  was  attempted 
to  charge  a  garnishee  of  A.,  by  showing  that  the  garnishee  had  ex- 
ecuted a  note  to  B.,  which,  at  the  time  of  the  garnishment  was  m 
the  possession  of  A.,  but  there  was  uo  proof  that  B.  had  indorsed 
the  iiotc,  or  that  the  garnishee  had  promised  to  pay  it  to  A.,  it  was 
held,  that  the  court  could  not  in  this  proceeding  assume  to  settle 
the  equitable  rights  of  the  parties  to  the  note,  and  that  the  plain- 
tiff could  hold  only  such  debts  as  the  defendant  could  recover  by 
action  at  law  in  his  own  name,  that  is,  his  legal  rights  as  distin- 
guished from  equitable.* 

1  Wells  I'.  Greene,  8  Mass.  504.  See  Smith  v.  Posey,  2  Hill  (S.  C),  471 ;  Lewis  r. 
Smith,  2  Cranch,  C.  C.  571. 

-  Hewitt  V.  Wheeler,  22  Conn.  557.     See  ante,  §  514. 

3  Lessing  v.  Vertrees,  32  Missouri,  431. 

*  HarrcU  v.  AVhitman,  19  Alabama,  135;  Hugg  v.  Booth,  2  Iredell,  282;  May  v. 
Baker,  15  Illinois,  89;  Barker  v.  Esty,  19  Vermont,  131.  In  Hoyt  i-.  Swift,  13  Ver- 
[380] 


CHAP.  XXV.]  GENERAL   VIEWS.  §  548 

§  548.  In  no  case  where  the  claim  of  the  defendant  against  the 
garnishee  rests  in  unliquidated  damages,  can  the  garnishee  be 
made  liable.  B.  &  P.,  partners,  were  summoned  as  garnishees  of 
T.,  and  it  appeared  that  they  had  signed  and  delivered  to  T.  a 
paper  in  the  follo\nng  words :  "  This  may  certify  that  if  Mr.  S.  T. 
should  wish  to  purchase  of  us  tin-ware  at  our  wholesale  prices 
within  twelve  months  from  date,  and  should  have  0.  P.'s  note  in 
his  possession,  we  will  take  the  same  in  payment."  Within  twelve 
months  from  the  date  of  this  instrument,  T.  presented  to  B.  &  P. 
four  notes  of  0.  P.,  and  demanded  their  amount  in  tin-ware  at 
wholesale  prices,  and  B.  &  P.  refused  to  comply  with  the  demand. 
It  was  contended  that  on  this  state  of  facts  B.  <fe  P.  might  be  held 
as  garnishees  of  T. ;  but  the  court  decided  that  as  T.'s  claim  was 
not  a  legal  debt,  but  rested  only  in  unliquidated  damages,  the  gar- 
nishment could  not  be  sustained.^  So,  a  mere  liability  of  the 
garnishee  to  an  action  on  the  part  of  the  defendant  for  negligence 
or  fraud,  slander,  assault  and  battery ,2  or  for  the  wrongful  conver- 
sion of  the  defendant's  property ,3  or  for  the  recovery  from  a  cred- 
itor of  usurious  interest  paid  him  by  the  defendant,*  cannot  be  the 
foundation  of  a  judgment  against  the  garnishee.  So,  a  liability  of 
a  constable  to  an  e.Kecutiun  creditor,  for  a  breach  of  official  duty  in 
respect  to  the  collection  of  the  execution,  cannot  be  attached  in  an 
action  by  u  creditor  of  the  person  to  whom  the  constable  is  so  liable. 
The  officer's  liability  in  such  case  is  for  a  specific  breach  of  duty, 
a  mere  tort,  and  is  no  more  subject  to  this  process,  than  any  other 
ridit  of  action  in  form  ex  delicto.^     Much  less  can  the  securities  in 

o 

mont,  129,  Coixamer,  J.,  said  :  "  The  debt  for  which  the  trustee  is  pursued,  must  be  a 
debt  which  the  dufendant  could  himself  pursue  at  law.  It  is  impracticable  thus  to  en- 
force a  mere  e(iuity  claim.  The  want  of  chamcery  power  in  the  county  court,  to  call  all 
the  parties  incidentally  interested  before  them,  and  to  pursue  such  a  course  as  to  deter- 
mine their  respective  and  conHictiiif^  rights,  renders  it  impracticable.  Otherwise,  two 
or  more  copartners  might  be  called  in  as  trustees  of  another  partner,  and  comfjelled  to 
render  an  account  of  the  whole  copartnership,  and  strike  the  balance  between  them- 
selves and  their  copartner,  and  thus  wind  up  a  long  and  intricate  concern,  without  the 
intervention  of  an  auditor  or  commissioner,  and  in  the  absence  of  their  copartner;  and 
all  this,  too,  when  the  defendant  could  have  sustained  no  action  at  law." 

1  Hugg  I'.  Booth,  2  Iredell.  282;  Deaver  v.  Keith,  5  Ibid.  374;  Leefe  v.  Walker,  18 
Louisiana,  1.     See  Rand  v.  White  Mountain  K.  H.,  40  New  Hamp.  79. 

-  Uundlet  v.  Jordan,  3  Maine,  47;  foster  v.  Dudley,  10  Foster,  463;  Lomerson  v. 
Huffman,  1  Dutcher,  625. 

8  Paul  r.  Paul,  10  New  Hamp.  117;  Despatch  Line  v.  Bellamy  Man.  Co.,  12  Ibid 
203  ;  Getchcll  v.  Chase,  37  Ibid.  106. 

*  Boardman  i'.  Roe,  13  Mass.  104 ;  Graham  v.  Moore,  7  B.  Monroe,  53 ;  Barker  v. 
Esty,  19  Vermont,  131 ;  Fish  v.  Field,  Ibid.  141. 

fi'llemmenwav  v.  Pratt,  23  Vermont,  332;  Thayer  v.  Southwick,  8  Grav,  229. 

[3ai] 


§  549  GARKISnEE'S   LIABILITY   AS   A   DEBTOR.  [clIAP.  XXV. 

an  ofTicer's  official  boiitl,  against  whom  an  action  might  he  main- 
tained for  his  faihiie  to  pay  over  money  collected  by  him  on  exe- 
cution, be  held  as  garnishees  of  the  execution  plaintiff.' 

§  549.  A  mere  contract  of  indemnity,  where  no  loss  ha.s  been 
sustained  by  the  party  indemnified,  cannot  authorize  the  garnish 
ment  of  the  maker  of  the  contract  in  a  suit  against  such  party. 
Thus,  where  an  arrangement  was  made  between  A.  and  B.,  where- 
by A.  was  to  give  his  notes  to  C.  for  certain  goods  jjurchased  by 
B.,  and  B.  was  to  furnish  A.  with  the  money  to  pay  the  not«'s  as 
they  matured,  and  the  notes  were  given,  but  before  they  matured, 

A.  became  insolvent,  and  failed  to  jmy  the  notes,  and  aftt.'rwards 

B.  was  summoned  as  garnishee  of  A. ;  it  was  held,  that  his  con- 
tract to  indcnuiify  A.  was  not,  in  the  absence  of  a  payment  of  the 
notes,  or  the  sustaining  of  any  damage  l)y  A.,  a  ground  for  charg- 
ing him,  though  it  a|ipeared  that  A.'s  notes  had  l>een  received  by 

C.  exj)ressly  in  payment  for  the  goods  sold.-  But  where  under  u 
contract  of  indenmity  a  loss  has  occurred,  and  the  party  indemni- 
fied has  a  claim  for  such  loss  against  him  who  engaged  to  indem- 
nify him,  the  latter  may  be  charged  as  his  garnishee  in  resjiect  of 
such  loss,  //  the  contrad  funiUh  a  staiulani  bi/  which  the  amount 
of  the  Vuddlity  may  be  ascertained  and  fixed.  Thus,  an  insurance 
company  may  be  so  charged  on  account  of  a  loss  accruing  under 
a  policy  of  insurance  issued  by  it ;  f»)r  the  liability  to  the  insured 

*  Eddy  V.  Heath's  Garnishees,  31  Missouri,  141. 

2  Towiisoiiil  c.  Atwuter,  5  Day,  298.  In  Duwner  r.  Topliff,  19  Vermont,  .199.  a  doc- 
trine was  niaintnint'd,  which,  so  fur  as  my  ol>s*Tvation  extends,  pf»cs  farther  than  any 
elsewhere  annuuneeti,  in  reaching,  throu;;h  parui.shment,  a  liahilily  to  the  dt-feiidant. 
A.  exeiiited  a  Injnd  to  B.,  a  eunstuble,  to  indemnify  him  fur  havinj;  attached  certain 
])roinrty  in  a  suit  in  favor  of  A.  v.  C.  After  the  attaehnn-nt.  D.  sued  IJ.,  the  eonstahlc, 
for  takiny  the  projierty,  and  recovered  jn<I^Mnent  ajrain-t  him  for  its  value,  and  in  that 
action  summoned  A.  as  piniishec  of  B. ;  and  the  question  was  wlu-tlur  A.  was  liuhle 
as  ftarnishee  in  rcs^x-et  of  his  havin;^  executed  the  bond  of  imkninitieation  to  B. 
EoYci:,  C.  .1.,  in  (Ulivorinj;  thi-  opinion  of  the  court,  said:  "  We  think  there  is  no  suf- 
ficient trround  for  sayinj;  that  the  claim  aj^ainst  the  trustee,  uf»on  their  Ixjnd  to  B.,  did 
not  eonsiituto  a  kind  of  indebtetlness,  at  the  time  when  this  proceeding'  wa.>  commenced, 
which  mij.'ht  well  be  reached  by  the  trustee  process.  The  bond  was  c'ven  to  B.,  an 
officer,  tu  indemnify  him  for  havin":  attached  certain  property,  at  the  suit  of  the  trustee 
A.,  as  bclon^-inj,'  to  one  C.  And  it  is  true,  that,  until  a  recovery  was  had  a;;ainst  B. 
for  the  i)ro|)crty,  at  the  suit  of  D.,  who  made  trood  his  title  to  it,  the  Vwnd  constituted 
but  a  continirent  claim  against  the  signers,  and,  as  such,  was  excluded  from  the  opera- 
tion of  the  trustee  jjroccss  by  express  statute.  But  after  B.  had  been  thus  damnified, 
ana  a  clear  and  substantial  cause  of  action  arose  upon  the  bond,  the  signers  became 
fixed  with  an  obligation,  which  was  certain  as  to  the  liability,  and  uncertain  only  as  to 
the  amount  for  which  they  might  be  ultimately  subjected.  It  was  like  any  other  in- 
debtedness, where  the  amount  is  susceptible  of  dispute  and  controvemy." 
[382] 


CHAP.  XXV.] 


GENER-\L   VIEWS.  §  550 


clearly  exists,  and  the  policy  furnishes  the  required  standard. 
This  has  been  held,  not  only  as  to  adjusted  claims  for  loss,i  but 
also  as  to  such  claims  unadjusted.^ 

§  ooO.   It  may  further  be  considered  as  settled,  that  the  debt 
must  be  such  as  is  due  in  money. ^     All  debts,  in  tlie  absence  of 
contrary  stipulations  between  the  parties,  must  be  paid  in  money. 
Therefore,  where  the  garnishee  acknowledged  an  indebtedness  to 
the  defendant,  payable  in  mason's  work  and  materials,  it  was  de- 
cided that  he  could  not  be  charged.*     So,  where  the  garnishee  had 
given  a  bond  to  the  defendaut  for  "  1,500  acres  of  land  warrant, 
and  800  and  odd  dulhirs  payable  in  whiskey."^     So,  where  tlie 
garni>hee  had   the  defendant  in  his  employ  as  a  laborer,  under 
an  agreement  that  he  should  be  paid  in  orders  on  another.^     So, 
whoro  the  garnishee  was  indebted  to  the  defendant  in  a  certam 
sum  to  be  paid  in  "store  accounts."  ^     And  where  payment  was 
to  be  made  in  notes  of  the  defendant  to  other  persons,  to  be  pro- 
cured by  the  garnishee,  he  was  held  not  to  be  lial)le.s     And  where 
one  gave  a  note  to  another  for  a  sum  of  money, "  payable  in  board- 
ing the  wife  and  child  "  .;f  the  payee,  it  was  decided  that  he  was  not 
chargeable.8     And  where  one  gave  a  note  payable  in  the  notes  or 
obligations  of  a  certain  banking  company,  he  was  held  not  charge 
able  for  the  amount  in  money,  if  he  delivered  up  the  notes,  to  be 
disiwsed  of  by  the  court.'"    In  all  these  cases  the  courts  proceeded 
u\m\  the  obvious  principle,  that  they  had  no  power  to  interfere 
with  the  contract  between  the  defendant  and  the  garnisheo,  and  to 
make  the  latter  pay  in  money,  what  he  had  agreed  to  pay,  and  the 
defendant  had  agreed  to  receive,  in  something  else." 

Still  we  find  in  Maryland,  that  where  a  garnishee  was  indebted 

1  Bovle  V.  Franklin  Fire  Ins.  Co.,  7  WatU  &  Serjeant,  76 ;   Franklin  Fire  Ins.  Co- 

'■  -^^Knox  r.'"lvilt-tion  Ins.  Co..  9  Conn.  430;  Giranl  Fire  Ins.  Co.  v.  Field,  45  Penn. 
Suti-,  129;  8.  C.  .3  (irunt,  329. 
»  Mims  I'.  Parker,  1  Alabama,  421. 

•  Writrlev  r.  Gcver.  4  Ma.ss.  102.  '  ..         .,  „  nr  mi. 
6  MeMinn  .•.  Hall.  2  Tonnes.Hee,  328.     Sec  Blackburn  r.  Davulson,  7  B.  Monroe,  101  , 

Smith  c.  Davis.  1  Wistunsin,  447. 
«  Willard  V.  Butler,  14  Tick.  530. 
T  Smith  r.  Chapman.  6  Porter,  365.     Sec  Blair  v.  Rhodes,  5  Alabama,  648. 

•  Mims  V.  Parker,  1  Alabama,  421. 

9  Aldrich  r.  Brooks,  5  Foster,  241.  .         .  ,    „^«      c^  t»„ 

i"  Marshall  v.  (;rand  Gulf  K.  U.  &  Banking  Co.,  5  Louisiana  Annual,  360.     bee  Jen- 
ning^s  r.  Summers,  7  Howani  (Mi.),  453. 
"  Bartlett  r.  Wood,  32  Vermont,  372.  r383l 


§  551  GARNISHEES   LIABILITY   AS   A   DEBTOR.  [CIIAP.  XXV. 

to  the  defcuduiit  in  a  sum  of  money,  payable,  by  express  agreo- 
meut,  in  work  and  labor,  he  was  charged.^  And  in  Massachusetts, 
it  has  been  decided  tliat  the  maker  of  a  note  payable  in  fiorses,* 
or  in  yoodts^  could  be  held  as  garnishee.  This  unusual  decision, 
however,  rests  upon  an  express  statutory  provision,  authorizing 
one  who  was,  when  served  witli  process,  "  bound  to  deliver  to 
the  defendant,  at  a  then  future  day,  any  specific  article  or  articles 
whatsoever,  other  than  money,"  to  be  declared  garnishee  of  the 
defendant,  and  permitting  hitn  to  deliver  the  specific  articles  to 
the  sheriir,  when  execution  slunild  be  issued  against  the  defendant. 
And  in  Iowa  it  was  held,  that  judgment  might  be  rendered  against 
a  garnishee  on  account  of  a  debt  payable  "  in  merchandise  or 
trade";  but  that  the  judgment  should  be  a  conditional  one,  for 
the  amount  of  the  garnishee's  del>t,  but  to  be  dischargetl  in 
merchandise,  at  a  fair  value,  to  be  placed  at  the  disposal  of  the 
sherilT;  on  failure  whereof  the  judgment,  on  motion,  to  become 
absolute,  for  which  a  general  execution  could  issue.* 

§  or)!.  The  dei)t  from  tlie  garnishoe  to  the  defendant,  in  respect 
of  which  it  is  sought  to  charge  the  former,  must  moreover  be 
absolutely  payable,  at  present  or  in  future,  and  not  dependent  on 
any  contingency.  If  the  contract  between  the  parties  be  of  such 
a  nature  tliat  it  is  uncertain  and  contingent  whether  anything 
will  ever  be  due  in  virtue  of  it,  it  will  not  give  rise  to  such  a 
credit  as  may  be  attached  ;  for  that  cannot  properly  be  called  a 
debt,  which  is  not  certainly  and  at  all  events  jyayable,  cither  at  the 
present  or  some  future  period.^  Therefore,  where  an  attempt  was 
made  to  attach,  by  garnishment  of  a  ship-owner,  the  wages  of  a 
sailor  employed  on  his  ship,  then  at  sea,  and  which  had  not 
arrived  at  any  port  of  unlading,  it  was  held,  that,  as  it  was 
uncertain  whether  the  ship  ever  would  arrive,  and,  therefore, 
whether  anything  would  ever  become  due  to  the  defendant,  it 
could  not  be  called  a  debt,  and  the  garnishee  was  not  therefore 
chargeable  ;  ^  and  this  though  the  vessel  had  arrived  just  outside 

1  Louderraan  r.  Wilson,  2  Harris  &  Johnson,  379. 

*  Comstock  r.  Farnum,  2  ^lass.  96. 
3  Clark  I'.  King,  2  Mass.  524. 

*  Stadlcr  v.  Parmlee,  14  Iowa,  175. 

6  Cushing's  Trustee  Process,  37  ;  Roberts  v.  Drinkard,  3  Metcalfe  (Ky.),  309  ;  Rus- 
sell V.  Clingan,  33  Mississippi,  535;  Bishop  v.  Young,  17  Wisconsin,  46;  and  the  sub- 
sequent cases  in  this  section. 

**  Wentworth  v.  Whittcmore,  1  Mass.  471. 
[384] 


CHAP.  XXV  J  GENERAL   VIEWS.  §  551 

of  the  harl)or  to  which  she  was  bound,  and  was,  by  grounding, 
prevented  from  entering  it.^  So,  where  there  was  a  contract 
between  tlie  shipper  of  a  cargo  and  the  owner  of  the  ship,  that 
the  latter  should  receive  a  share  of  the  profits  arising  on  the 
cargo,  and,  before  the  completion  of  tlie  voyage,  the  shipper  was 
summoned  as  garnisliee  of  the  owner,  the  court  regarding  it  as 
contingent  whether  the  ship  would  successfully  terminate  the 
voyage,  or  if  so,  whether  there  would  be  any  profits  on  the  cargo, 
considered  that  there  was  no  debt  capable  of  attachment.^  So, 
where  the  garnishee  had  received  from  the  defendants  a  bill  of 
exchange,  and  gave  a  receipt  therefor,  promising  to  account  to  the 
defendants  for  the  proceeds  of  the  bill  when  received  ;  and  before 
the  payment  of  the  bill  he  was  garnished ;  it  was  held,  that,  as  it 
was  contingent  whether  the  bill  would  ever  be  paid,  he  could  not 
be  charged.^  So,  where  one,  acting  for  himself  and  as  agent  of 
others,  left  a  part  of  a  cargo,  sliipped  on  a  vessel  of  which  he  was 
master,  and  in  which  he  and  tlie  defendants  were  jointly  in- 
terested, with  merchants  abroad,  to  l)e  sold  on  his  account,  and 
the  proceeds  to  be  subject  to  his  order,  and  took  the  receipt  of 
the  merchants  to  that  effect,  and  while  the  goods  were  in  this 
situation,  he  was  summoned  as  garnishee  of  the  other  parties  to 
whom  jointly  with  him  the  goods  belonged  ;  it  was  decided,  that 
the  credit  was  a  contingent  one,  and  therefore  not  attachable.* 
So,  where  a  lessee,  who  covenanted  to  pay  rent  quarterly,  was 
sumiiKjiied  as  garnishee  of  the  lessor,  he  was  held  only  for  such 
quartei-s'  rent  as  were  due  when  he  was  summoned  ;  all  beyond 
that  being  considered  contingent  and  uncertain.^  So,  where  one 
received  a  bill  of  lading  and  an  invoice  of  goods  consigned  to 
him,  and,  before  the  receijit  of  the  goods,  was  garnished  in  a  suit 
against  the  consignor,  he  was  disehaiged,  because  it  was  contin- 
gent whether  he  would  ever  receive  or  accept  the  ^consignment.^ 
So,  where  it  appeared  from  the  garnishee's  answer,  that  he  had 
employed  the  defendant  as  a  broker  to  make  a  purchase  of  a 
cargo  of  lemons  and  oranges,  with  an  agreement  that  the  de- 
fendant should  have  one  third  part  of  the  net  profits  upon  a  resale, 

1  Tabcr  v.  Nve,  12  Pick.  105.  *  Davis  v.  Ham,  3  5Iass.  33. 

'  Frothin;j:ham  v.  Haley,  3  Mas3.  68. 
*  Willanl  c.  Sheafc,  4  Mass.  235. 

6  Wood  V.  Partridge,  1 1  Mass.  488 ;  Baltimore  &  Ohio  R.  R.  Co.  v.  Gallahtie,  14 
Grattan,  563. 
6  Grant  i'.  Shaw,  16  Mass.  341. 

25  [385] 


I  551  GARXISIIEE'S   LIABILITY   AS   A   nEBTOR.  [cHAP.  XXV. 

and  that,  at  tho  timo  of  the  guru i si i men t,  the  whole  proceeds  of 
the  resiilo  had  not  been  received  ;  it  was  held,  that  it  was  uncer- 
tain and  contingent  whether  there  would,  on  closing  the  transi- 
actiuu,  be  anything  due  the  defendant,  and  the  garnishee  was 
discharged.*  So,  where  a  garnishee  held  real  estate  of  tho 
defendant  under  a  i)roniise  to  sell  and  pay  over  the  proceeds, 
it  was  held,  that  sucii  a  promise  to  pay  over  money  was  but  an 
executory  contract,  and  that  there  might  bo  several  contingencies, 
without  the  fault  of  the  garnishee,  that  would  prevent  his  owing 
money  ;  and  he  was  disciiarged.^  So,  where  a  contract  existed 
between  the  garnishee  and  the  defendant,  by  which  the  defendant 
was  to  l)c  employed  by  the  garnishee  in  a  manufactory,  for  a 
salary,  and  was  to  de|)Osit  with  the  garnishee  !?mOO  to  indenuiify 
him  against  loss  in  the  business,  and,  uiK)n  tl»c  dissolution  of  tho 
contract,  so  much  of  the  sum  dejMJsited  as  should  not  be  required 
to  indenuiify  the  garnishee  against  loss  was  to  l>c  repaid  to  the 
defendant;  it  was  held  to  be  uncertain  and  contingent,  when  the 
garnishee  was  summoned,  whether  the  defendant  would  ever  be 
entitled  to  recover  the  •S-BOO  deposited,  and  that,  therefore^  the 
garnishee  was  not  liable.''  So,  where  a  testator  bequeathetl  to  his 
wife  "  the  use  of  thirty  shares  in  the  Oxford  Bank  ;  said  shares, 
at  her  decease,  to  be  equally  divided  between  his  heirs,"  and  died, 
leaving  several  children,  and  his  executor  was  sunnnoncd  as 
garnishee  of  the  husl»and  of  one  of  them;  it  was  held,  that  the 
reversionary  interest  of  any  one  of  tho  children  in  these  shares 
was  contingent,  and  conse<iuently  not  lialde  to  be  attached  in  the 
hands  of  the  executor.*  So,  where  the  garnishee  disclosed  that 
the  defendants,  being  indebted  to  him,  had  caused  certain  of  their 
goods  to  be  insured,  and  the  policy  reijuired  payment,  in  case  of 
a  loss,  to  be  made  to  him,  and  that  the  goods  were  destroyed  by 
fire,  and  before  proof  of  the  loss  was  made  he  was  garnished  ;  it 
was  considered  that  his  liability  to  the  defendants  was  contingent, 
and  he  was  discharged.^  So,  where  a  son  gave  a  bond  to  his 
father  for  the  payment  of  certain  sums  of  money,  and  the  delivery 
of  certain  quantities  of  provisions,  at  fixed  times  in  each  year 
during  his  father's  life  ;  it  was  held,  that  he  could  not  be  charged 

«  Williams  v.  Marston,  3  Pick.  65. 
2  Guild  V.  Holbrook,  11  Pick.  101. 
8  Fiuilkner  i-.  Waters,  11  Pick.  473. 

*  Kich  V.  Waters,  22  Pick.  563.     See  Clement  v.  Clement,  19  New  Hamp.  460. 
s  Mcacham  v.  McCorbitt,  2  Metcalf,  352. 
[386] 


CHAP.  XXV.]  GENERAL   VIEWS.  -  §  552 

as  garnisliee  of  the  father  for  anything  not  actually  payable  at 
the  time  when  he  was  garnished  ;  all  future  payments  being 
cojitingent,  depending  on  the  continuance  of  the  father's  life.* 
So,  whi.'i-e  a  note  was  executed,  pavable  on  a  contingency,  and 
before  it  became  payable  absolutely  the  maker  was  summoned  as 
garnishee  of  tlie  payee  ;  it  was  held,  that  the  contingency  not 
having  hajipened  upon  which  it  would  become  absolutely  due,  he 
could  not  be  charged.'^  So,  where  a  consignee  who  had  sold  goods 
upon  a  credit,  and  guaranteed  the  sale,  was  summoned  as  gar- 
nishee of  the  consignor,  before  the  expiration  of  the  credit,  it  was 
considered  that  his  undertaking  was  collateral  and  contingent,  and 
that  lie  could  not  be  charged.' 

§  552.  But  while  the  proposition  that  a  debt  not  actually  and 
at  all  events  payable,  but  depending  on  a  contingency,  cannot  be 
attached,  is  sufficiently  simple,  the  application  of  it  to  particular 
cases  whicli  raise  the  ipiestion  of  contingent  or  not,  is  not  always 
of  easy  solution.  "  Thus  much,  however,"  in  the  language  of  the 
Supn'int'  Court  of  Massachusetts,  "  may  be  considered  as  clear, 
that  the  contingency  must  affect  the  property  itself,  or  the  debt 
wliich  is  supposed  to  exist,  and  not  merely  the  title  to  the  property 
in  the  {)Ossession  of  the  trustee,  or  his  liability  on  a  contract  wliich 
he  has  actually  made,  but  the  force  or  effect  of  which  is  in  litiga- 
tion. Exami»les  showing  the  distinction  may  be  taken  from  the 
cases  decided.  Tlius  the  wages  of  a  sailor  on  board  a  vessel 
which  has  not  arrived,  are  not  liable  to  the  process,  because  whether 
due  or  not  depends  on  tbe  arrival  of  the  vessel.*  So,  sliijipers  of 
a  cargo,  under  contract  with  the  owner  of  the  ship  that  he  shall 
have  a  share  of  the  net  {jrofits  arising  on  the  cargo,  are  not  liable 
as  trustees  until  the  termination  of  the  voyage,  as  it  is  altogether 
contingent  whether  anything  will  ever  be  due.*  -<There  are  many 
other  cases  of  a  similar  character,  but  these  two  arc  sufTicieiitly 
distinct,  to  show  what  is  intended  in  the  decisions  by  the  term 
contingent,  that  is,  an  uncertainty  whether  anything  will  ever  come 
into  the  hands  of  the  trustee,  or  whether  he  will  ever  be  indebted ; 

1  Sayward  r.  Drew,  6  Maine,  263. 

2  Burke  r.  WhiK-omb,  13  Vermont,  421. 

«  Tucker  v.  Clisby,  12  Pick.  22.     See  Bates  r.  New  Orleans,  &c.  Railroad  Co.,  4 
Abbott,  Pract.  R.  72. 
*  Wi-ntworth  v.  Whittemore,  1  Ma.«s.  471. 
s  Davis  V.  Ham,  3  Ma.ss.  ai ;  Cutter  i-.  Perkins,  47  Maine,  557. 

[.387] 


§  552  «     GARS'ISIIKES   LIABILITY    AS    A   DF.DTOB.  [CIIAP.  XXV 

tho  uncertainty  arising  from  the  contract,  express  or  implieJ,  bo- 
twoen  tho  debtor  and  tho  trustee.  Tliis  principle  has  never  boon 
applied  to  a  case  where  iirojH'rty  is  actually  in  the  possession  of 
tiie  trustee,  claimed  by  the  di-btur,  his  right  to  it  being  in  cou-  . 
trovcrsy,  nor  to  demaiuls  against  the  trustee  himself  iu  tho  na- 
ture of  a  debt  due  to  the  defendant,  which,  however,  may  be  in 
dispute  between  them.  In  such  cases  tho  process  is  considered 
as  attaching,  and  is  postponed  until  a  liability  to  the  debtor  is 
ascertained."  * 

Therefore,  wh«Me  the  garnishee  answered  that  he  had  a  sum  of 
money  in  his  hands,  the  right  to  which  was  contested  between  tho 
defendant  and  other  parties,  and  had  been  submitted  to  referees, 
tho  court  held,  that  here  was  no  contingency  as  to  the  property, 
but  merely  as  to  tiie  title,  and  that  such  contingency  did  not 
discharge  the  garnishee ;  and  that  tho  proceedings  might  bo 
|)Ostponed  until  it  should  be  ascertained  to  which  |)arty  the  money 
belonged."  So,  where  a  garnishee  had  purcha.sed  certain  proi)erty 
of  the  defendant,  under  a  contract  to  pay  for  the  same  within  a 
stipulated  time,  unless  within  that  time  ho  should  elect  to  ro- 
convt«y  the  property  ;  and,  before  the  expiration  of  the  time,  and 
before  he  had  elected  to  reconvey  the  pro|)erty,  he  was  sununoned 
as  garnishee  of  the  defendant,  and  objection  was  made  to  his 
being  charged,  on  the  ground  that  iiis  lial)ility  dejiend.'d  on  a 
contingency,  which  had  not  happened  when  he  was  garnished  ;  it 
was  hold,  that  the  case  was  not  ono  of  contingency  such  as  to 
exempt  the  garnishee  from  liability.*  vr 

§  553.  As  the  attaching  plaintiff  can  acquire  no  other  or  greater 
rights  against  the  garnishee  than  the  defendant  has,  it  follows  that, 
thouirli  the  garnishee  bo  indebted  to  the  defendant,  yet  if  there  l)e 
anything  to  bo  done  l>y  the  latter  as  a  condition  precedent  to  his 

1  Thonulike  v.  Do  Wolf,  G  I'ick.  120 ;  Dwinel  r.  Stone,  30  Maine,  384  ;  Downer  v. 
Curtis,  25  Vermont,  G.'jO. 

2  Thorndikc  r.  DeWolf.  6  Tick.  120. 

8  Smith  V.  Cahoon,  37  Maine,  2S1.  The  following  arc  the  views  of  the  court :  "  At 
the  time  of  the  service  of  the  writ,  P.  (the  -arnishee)  held  in  liis  hands  the  consideration 
of  his  contract  with  the  defendant.  By  that  contract  he  had  his  election  to  restore  the 
property  purchased,  within  a  time  not"  then  expired,  and  tluTeby  discharge  his  obliKa- 
tions  to'pav  the  stii)ulated  price  in  money.  He  had  either  goods  or  credits  in  his  hands. 
It  was  not' uncertain,  whether  he  had  received  absolutely  the  consideration  of  his  con- 
tract, nor  whether  he  was  absolutely  t)ound  to  fulfil  that  contract,  by  a  return  of  the 
property  received,  or  pay  its  agreed  equivalent ;  but  the  manner  in  which  he  should 
dischar^  it  was  dependent  on  his  choice.     This  is  not  the  contingency  referred  to  in 

[388] 


CHAP.  XXV.]  GENERAL   VIEWS.  §  554 

recovering  his  debt  in  an  action  against  the  garnishee,  the  plaintiff 
cannot  obtain  judgment  against  the  garnishee  without  performing 
tlie  condition.  Thus,  where  a  raih-oad  company  was  summoned 
as  garnishee  of  one  who  liad  contracted  to  do  work  on  its  road 
and  it  appeared  that  tlie  contract  under  wliich  the  work  was  done 
provided  that  the  contractor  should  not  receive  tlic  amount  of  the 
final  estimate  of  his  work,  until  he  should  release,  under  seal,  all 
claims  or  demands  upon  the  company  arising  out  of  the  contract ; 
and  at  the  time  of  the  garnishment  he  had  not  executed  such  a 
release  ;  it  was  held,  that  tlie  company  could  not  be  charg(.'d  as 
garnishee.*  So,  where  an  executor  was  garnished  on  account  of 
a  legjicy  boqueath<'d  to  the  defendant,  which  tlie  defendant  could 
not  have  recovered  without  giving  the  executor  a  refunding  bond  ; 
it  was  held,  that  the  executor  could  not  be  charged  as  garnished 
until  the  plaintiff  indemnified  him.^  So,  where  a  party  contracted 
to  perform  ^  specified  amount  of  labor,  and  the  performance 
therecjf  was,  by  the  terms  of  the  contract,  a  condition  precedent 
to  the  right  to  recover  pay  therefor,  and  he  voluntarily  abandoned 
the  work  before  it  was  com|)leted,  without  fault  upon  the  other 
side  ;  it  was  held,  that  h<»  was  not  entitled  to  recover  a  pro  rata 
oonipensation  for  the  amount  of  labor  performed  by  him;  and 
that  the  party  for  whom  the  work  was  done  could  not  be  charged 
as  hi>  LMrni>lii'e  in  resj>cct  thereof.^ 

§  .">.">4.  The  further  consideration  of  the  liability  of  a  garnishee, 
in  respect  of  imlebtedness  to  the  defendant,  will  be  pro.secutcd  in 
the  succeeding  cha|)ters  under  the  following  heads :  — 

I.  The  garnishee's  lial>ility,  as  affected  by  the  time  when  his  debt 
to  the  defendant  is  payiil)le. 

II.  As  affected  by  his  having  co-debtors,  and  by  the  numlicr  of 
the  defendants,  and  the  iiuml)er  of  his  creditors. 

the  statute  cited  for  the  trustee.  AnJ  in  the  ctiscs  relied  upon  in  his  behalf,  the  facts 
were  such  as  to  leave  it  uncertain,  whether  any  j:oo«ls,  effects,  or  cre<lits  were  in  the 
hands  of  the  supposed  trustee  at  the  time  he  was  served  with  the  process.  In  this  case 
it  wiw  otherwise.  The  ri;;ht  to  (U-eiilc  in  which  of  the  two  mo<les  provided  he  would 
fulfil  his  a;.Teement,  did  not  leave  his  iiabilitv  in  any  dep-ec  contingent,  and  he  cannot 
with  propriety  conteiul  that  he  Wiis  not  trustee.  He  had  the  jjower  to  signify  liis  elec- 
tion to  return  the  projMjrty,  in  which  case  he  would  hold  the  property  subject  to  the 
trustee  process,  fn  the  same  manner  that  he  would  have  done,  had  he  been  bound  abso- 
lutely to  retuni  the  property  within  the  time  siK-eified  in  the  contract." 

•  Baltimore  &  Ohio  R.  U.  Co.  v.  McCullough,  12  Grattan,  595. 
'^  Ross  r.  M'Kinny,  2  Rawle,  227. 

•  Kettle  V.  Uar^-cv,  21  Vennont,  301 

[389] 


§  6a4  GARNISH  ELS   LLvniLlTV    AS   A   DEBTUR.  [CIIAP.  XXV. 

m.  Ilis  liability,  as  a  party  to  a  promissory  note. 

IV.  His  liability,  as  afTectcd  by  prcMixistiug  contracts  with  the 
defendant  or  third  persons. 

V.  As  afiected  by  a  fraudulent  attempt  by  the  defendant  to  de- 
feat the  payment  of  his  debts. 

VI.  As  atTected  by  an  equitable  assi<^nraent  of  the  debt. 

VII.  As  atfected  by  the  commencement,  |)cndency,  and  comple- 
tion of  legal  proceedings  against  him,  by  the  defendant,  for  the 
recovery  of  the  debt. 

[390] 


CHAP.  XXVI.]  GARNISHEE'S   LIABILITY   AS   TO   TDIE.  §  556 


CHAPTER    XXYI. 

THE  garnishee's    LIABILITY,   AS   AFFECTED    BY  THE  TIME   WHEN   HIS 
DEBT   TO    THE    DEFENDANT   13   PAYABLE. 

§  555.  Though  the  doctrine  is  well  settled,  that  where  it  is  con- 
tingent whether  the  garnishee  will  ever  owe  the  defendant  money, 
he  cannot  l)e  made  liable,  it  l»y  no  means  follows,  that  where  there 
is  a  present  debt,  payable  in  the  future,  the  same  exemption  exists. 
Ln  a  .state  of  society  whore  a  system  of  credit  is  so  extensively  es- 
tablished as  in  this  country,  it  would  greatly  impede  the  collection 
of  debts,  if  no  credits  of  a  defendant  could  be  reached  but  those 
actually  due  and  payable  at  the  time  of  the  garnishment.  Hence, 
in  .some  States,  it  hai>  been  considered  proper  to  jjrovide  by  express 
enactment  for  the  attachment  oi  debts  not  falling  due  until  after 
the  service  of  the  writ ;  though  on  general  principles  such  pro- 
Tision  would  seem  to  be  unnecessary,  since  the  almost  uniform 
current  tA'  liccisiun  has  been  in  favor  of  the  operation  of  the  gar- 
nishment in  such  caM-'S. 

§  55t).  In  Tennessee,  it  has  been  held  that  a  debt  not  due  can- 
not be  attached.  In  the  case  in  which  this  decision  was  had,  it 
appeared  that  the  garnishee  owed  the  defendant  money,  which  was 
not  due  at  the  time  of  the  garnishment,  but  became  due  between 
that  time  and  the  filing  of  the  answer,  and  was  paid  at  maturity. 
The  court  said :  "  By  the  provisions  of  the  act,  the  person  is  sum- 
moned to  answer  what  he  is  indebted  at  the  time  of  the  summons. 
There  is  no  ecjuitable  construction  by  which  the  court  can  feel 
authorized  to  go  beyond  the  words  of  the  act,  to  reach  a  ca.se  of 
indelitedness  ;  the  act  has  been  taken  with  strictness."^  This  is 
believed  to  be  the  only  State  in  which  this  position  is  taken,  and 
from  the  report  of  this  case  we  are  justified  in  supposing  that  the 
general  principles  bearing  on  the  matter  were  not  presented  by 
counsel,  or  considered  by  the  court.  The  court  say:  "  The  person 
is  summoned  to  answer  what  he  is  indebted  at  the  time  of  the  sum- 

1  riiil.lns,  ,-.  I)i,  kiiK,  8  YtT-cr,  113;  M'>Lnn  i:  Hall,  2  Tennessee,  .328. 

[391] 


§  5i>S  GABXISnEE'S   LIABILITY   AS   TO   TIME.  [CHAP.  XXVL 

mons" ;  and,  confounding  indebtedness  with  time  of  payment,  they 
consider  that,  because  the  debt  was  not  actually  due  and  payable 
at  the  time  the  garnishee  was  summoned,  it  was  no  debt.  They 
overlook  the  fact  that  the  law  everywhere  recognizes  the  existence 
of  dehitum  in  prcesaiti,  solvendum  in  futuro,  and  that  one  who  has 
engaged  to  pay  another  a  sum  of  money  at  a  future  time  is  as  much 
a  debtor  as  he  whose  time  of  payment  has  already  passed.  It  is  suf- 
ficient to  say,  that  this  decision  is  adverse  to  the  entire  adjudications 
elsewhere,  in  England  and  this  country,  and  must  be  considered  as 
overborne  by  the  weight  of  authority,  as  well  as  by  principle. 

§  557.  Thus,  by  the  custom  of  London,  money  duo  to  a  defend- 
ant from  a  garnishee,  but  not  ])ayable  at  the  time  of  the  garnish- 
ment, may  be  attached,  and  judgment  may  be  rendered  in  respect 
thereof  at  once,  but  no  execution  shall  issue  till  the  time  of  pay- 
ment arrives.^  The  same  doctrine  has  been  ainiounced  in  Maine,^ 
Massachusetts,^  Pennsylvania,"*  Maryland,''  North  Carolina,'''  Ala- 
bama,'^ and  Arkansas,^  and  may  be  regarded  as  firmly  established. 
And  where  the  debt  exists,  but  the  time  when  it  may  become  pay- 
able depends  upon  a  notice  to  be  given  by  the  defendant  to  the 
garnishee,  it  may  be  attached,  though  no  such  notice  have  been 
given. ^ 

§  558.  A  singular  case  occurred  in  Vermont,  where  one  sum- 
moned as  garnishee  had  given  the  defendant  a  promissory  note,  in 
which  was  embodied  a  clause  in  these  words :  "  I  am  at  my  option 
about  paying  the  principal  of  this  note,  while  I  pay  the  interest 
annually."  The  garnishee  claimed  that  this  clause  exempted  him 
from  liability,  under  a  statute  which  provided  that  one  may  be 
held  liable  as  garnishee  for  "  money  due  to  the  principal  defend- 
ant, before  it  has  become  payable,"  but  "  shall  not  be  compelled 
to  pay  it  before  the  time  appointed  therefor  by  the  contract." 

1  Priv.  Lond.  2G1,  262. 

2  Sayward  v.  Drew,  6  ]\Liine,  263. 

8  Willard  v.  Sheafe,  4  Mass.  235. 

*  Walker  v.  Gibbs,  2  Dallas,  211 ;  s.  c.  1  Yeates,  255;  Fulweiler  r.  Hughes,  17  Penn. 
State,  440. 

6  Steuart  v.  "West,  1  Harris  &  Johnson,  536. 

^  Peace  v.  Jones,  3  Murphey,  256. 

T  Branch  Bank  v.  Poe,  1  Alabama,  396 ;  Cottrell  v.  Vamum,  5  Ibid.  229. 

*  Dunnegan  v.  Byers,  17  Arkansas,  492. 

9  Claj)])  V.  Hancock  Bank,  1  Allen,  394;  Nichols  v.  Scofield,  2  Rhode  Island,  123. 

[392] 


CHAP.  XXVI.]  GARNISHEE'S  LIABH^TTY   AS  TO  TIME.  §  559 

The  court,  however,  very  properly  held  otherwise,  and  charged 
the  garnishee.^  ^^^^--' 

§  559.  But  in  order  to  attach  a  debt  payable  in  futiiro,  it  must 
be  a  certain  debt,  which  will  become  payable  upon  the  lapse  of 
time,  and  not  a  contingent  liability,  which  may  become  a  debt  or 
not,  on  the  performance  of  other  acts,  or  the  happening  of  some 
uncertain  event.  Tlius,  where  the  salary  of  a  minister  was  payable 
quarterly,  with  an  agreement  that,  if  he  entered  on  a  quarter  and 
did  not  complete  it,  nothing  should  be  due  for  such  service ;  and 
the  minister,  in  the  middle  of  a  quarter,  tendered  his  resignation, 
which  was  accepted ;  and  the  parish  afterwards  voted  to  pay  him 
j>ro  rata  for  the  time  of  his  service,  after  the  commencement  of 
the  quarter ;  it  was  held,  that  the  parish  was  not  liable,  as  gar- 
nishee of  the  minister,  on  a  process  served  after  the  resignation 
and  before  the  passing  of  the  vote ;  because  when  ihe  process  was 
served  there  was  no  il^bt,  and  the  subsequent  vote  could  not  relate 
back  so  as  to  make  a  debt  at  that  time.^ 

1  Fay  V.  Smith,  25  Vermont,  610. 

2  Wyinan  i-.  Hichborn,  6  Cushiuy,  2G4.     See  Baltimore  &  Ohio  R.  R.  Co.  v.  Galla- 

hue.  U  Grattan,  563. 

[393] 


§  oGl  GAfiNISU££S   LIABILITY  [CHAP.  XXVIL 


CHAPTER    XXVII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  HIS  HAVING  CO-DEBTORS, 
AND  BY  THE  NUMBER  OP  THE  DEFENDANTS,  AND  THE  NUMBER  OF 
HIS   CREDITORS. 

§  500.  I.  His  Liahility  as  affected  hy  his  having  Co-debtors. 
Wlioro  sov<m;i1  persons  are  jointly  and  sovonilly  lialdo  for  a  debt, 
any  ono  of  them  may  he  garnished,  and  sul>jectod  to  a  judgment 
for  the  whuli!  amount  of  tlio  debt,  in  tljo  same  manner  that  he 
miglit  he  suimI  hy  the  defendant  without  his  co-tlehior  l>eing  joined 
in  the  action.*  Hut  it  is  unadvisahle  in  any  case  to  garnish  ono 
of  several  joint  and  several  debtors,  without  joining  the  others, 
if  practical)le  ;  for  a  j)ayment  by  one  not  garnished  will  certainly 
discharge  tlu;  lial>ility  of  the  garnishee,  whether  made  InTore  or 
after  the  garnishment.  Thus,  where  it  aj»j)eared  that  the  gar- 
nishee and  another  had  executed  a  note  to  the  defendant,  promis- 
ing to  deliver  to  him  at  a  certain  time  five  tons  of  hay,  and,  before 
the  note  became  due,  one  of  the  makers  was  garnished,  and  after- 
wards, when  it  became  due,  the  other  maker  jwiid  it,  the  court  held 
this  payment  to  be  a  discharge  of  the  garnishee.* 

§  561.  "Where  two  or  more  persons  are  jointly  liable  for  a  debt, 
if  part  of  them  only  are  garnished,  they  may,  in  Massachusetts, 
take  advantage  of  the  non-joinder  in  abatement,  but  the  process 
will  not,  because  of  the  non-joinder,  be  considered  wholly  void.* 
In  New  Hampshire,  however,  where  one  was  summoned  as  gar- 
nishee, and  it  appeared  from  his  answer  that  he  was  not  indebted 
to  the  defendant  in  his  individual  capacity,  but  as  a  partner  in  a 
firm,  the  other  members  of  which  were  not  joined  with  him  in  the 
writ,  it  was  decided  that,  because  of  the  non-joinder  of  the  other 

1  Travis  v.  Tartt,  8  Alabama,  574  ;    Speak  v.  Kinscv,  17  Texas,  301  ;   Macomber  v 
"Wright,  35  Maine,  156. 

*  Jewett  V.  Bacon,  6  Mass.  60.     See  Robinson  v.  Hall,  3  Metcalf,  301. 

'  Hathaway  i-.  Russell,  16  Mass.  473.     But  in  such  case  the  garnisliee  mnst  take  ad- 
vantaf,'e  of  the  non-joinder  in  the  early  stage  of  the  proceedinf;s.     After  his  failure  to 
answer,  and  the  issue  of  a  scire  facias  against  him,  consequent  on  such  failure,  he  ca*  - 
not  set  up  this  defence.     Uovt  v.  Robinson,  10  Gray,  371. 
[31.4] 


CHAP.  XXVII. ]  WITH   CO-DEBTORS,  ETC.  §  504 

partner,  the  garnishee  could  not  be  charged.^  And  it  was  so  held 
in  Vermont,-  in  lowa,^  in  Georgia,*  and  by  the  United  States  Cir- 
cuit Court  for  the  District  of  Columbia.^  In  Pennsylvania,  how- 
ever, while  it  is  admitted  that  in  common  suits  between  creditors 
and  debtors,  tlie  latter  may  plead  in  abatement  that  a  partner  was 
not  namt'd  in  tlie  writ,  yet  that  the  reason  of  the  jjlea  in  those 
cases  does  not  apply  to  attachments ;  and  such  a  plea  by  a  gar- 
nishee was  disregarded.* 

§  oG2.  But  where  the  garnishees  were  partners  in  a  firm,  part 
of  the  members  of  which  resided  in  another  State,  and  the  names 
of  all  the  members  were  contained  in  the  writ,  it  was  held  that, 
as,  if  an  action  had  been  brought  against  them,  a  service  on  those 
within  the  jurisdiction  wotild  be  sufficient,  so  the  garnishment  of 
the  resident  partners  was  suflTRMont  to  hold  the  funds  of  the  de- 
fendant in  tht"  banils  of  tho  firmJ 

§  oij;5.  And  in  all  such  cases,  as  well  whore  the  co-debtors  not 
summoned  reside  within  the  State,  and  the  garnishees  do  not 
object  on  that  account  to  answer,^  as  where  those  not  summoned 
reside  out  of  the  State,*  if  it  api>ear  by  the  answers  that  time  is 
wanted  to  ascert:iin  the  condition  of  the  funds,  or  the  liability  of 
any  of  tin;  other  partners,  who  are  not  summoned,  on  account 
of  any  acceptance  or  engagement  they  have  entered  into,  or  of 
any  suit  l»rought  against  them,  the  process  will  be  stayed,  until  full 
iiifiinii:ifii)n  i:ui  !»••  ubfuiufd.**^ 

§  .VA.  There  is,  however,  a  case  which  constitutes  an  exception 
to  the  rule  that  resident  partners  may  be  garnished  and  the  funds 
in  the  hands  of  the  firm  therel>y  attached*,  though  otlier  members 
of  the  firm  reside  in  another  State.     The  exception  is,  where  part 

»  Rix  r.  Klliott,  I  New  Ilamp.  184;  Hudson  v.  Hunt,  5  Ibid.  538;  Atkins  v.  Pres- 
cott.  10  Ibi.I.  liH). 

*  IVtteji  r.  Spaldinp,  21  Vermont,  66. 

*  Wilstm  V.  Alliri-ht,  2  G.  Gntne,  125. 

*  Hu!*kins  t'.  Johnson.  24  Gi-orj^ia,  625. 

*  Ellicott  r.  Smith,  2  Crunch,  C.  C.  543. 

*  Brcal»ford  r.  .Meade,  1  Yeates,  488. 

'  Parker  r.  Danforth.  16  Mass.  299;   Atkins  v.  Prescott,  10  New  Hamp.  120;  War- 
ner V.  Perkin>,  8  C'li^hin;;,  518 ;  Pet-k  i'.  Bamum,  24  Vermont,  75. 
»  Hathaway  r.  I{us<m.II,  16  Mass.  473. 
»  Parker  r.  Dantorth,  16  Mass.  299. 
V>  Parker  v.  Ihintonh    16  Ma^s.  299  ;  Cii-hing's  Trustee  Process,  §  92. 


§  564  a  GARNISHEE'S   LIABILITY  [CIIAP.  XXVIL 

of  the  firm  reside  in  this  country  and  part  in  a  foreign  country. 
There,  it  lias  been  decided  that  the  resident  partners  cannot  ha  held 
as  garnishees.  The  question  arose  on  the  following  state  of  facts : 
P.,  a  resident  of  Boston,  and  G.,  a  resident  of  Havana,  were  gen- 
eral partners  under  the  firm  of  P.  &  G.,  having  a  house  established 
and  doing  business  in  the  latter  city.  B.,  the  defendant,  deposited 
in  the  hands  of  G.,  at  Havana,  a  sum  of  money,  taking  a  receipt 
therefor  in  the  name  of  P.  &  G.  Afterwards  P.  was  summoned 
in  Boston  as  garnishee  of  B.,  and  when  he  was  summoned  the 
money  still  remained  in  the  hands  of  G.,  at  Havana.  The  court, 
upon  the  following  grounds,  decided  that  P.  could  not  be  charged 
as  garnishee  :  "  The  debt  from  the  house  to  B.  was  contracted  in 
Havana,  and  was  there  to  be  accounted  for  according  to  the  terms 
of  the  receipt ;  and  it  would  be  attended  with  manifest  inconven- 
ience to  commercial  men,  if,  when  they  have  received  property  on 
credit  in  one  country,  they  could  be  held  accountable  to  a  stranger 
in  another  ;  when  the  terms  upon  which  they  received  it  might  be 
satisfied  abroad,  without  a  possibility  of  showing  it  here. 

"  Besides,  their  creditor  abroad  may  have  the  means  of  compel- 
ling payment  in  the  country  where  the  contract  was  made ;  and  it 
is  altogether  unknown  to  us,  whether  a  judgment  of  this  court, 
founded  on  this  process,  would  be  respected  by  a  foreign  tribunal, 
who  might  have  perfect  evidence  of  the  existence  of  the  debt, 
without  any  satisfactory  proof  that  it  had  ever  been  discharged. 

"  There  is  also  a  difficulty  in  considering  one  partner  of  a  house 
as  the  trustee,  when  the  other  partner  abroad  may,  without  his 
knowledge,  have  discharged  the  debt,  or  come  under  some  liability 
which  would  give  the  house  an  equitable  lien  upon  it.  Debtors, 
who  are  co-partners  here,  must  all  be  summoned  and  made  parties 
to  the  suit.  It  is  true,  this  cannot  be  done  where  some  of  them 
have  become  domiciled  abroad.  But  this  difficulty  will  suggest 
doubts,  whether  a  house  so  circumstanced  can  be  lawfully  made 
the  subjects  of  this  process.  At  any  rate  when  the  debt  is  con- 
tracted abroad,  with  a  view  to  the  agency  of  the  foreign  partner, 
or  an  expectation  that  it  will  be  paid  or  negotiated  by  him,  we  think 
the  partner  at  home  cannot  be  charged  as  trustee."  ^ 

§  564  a.  Wliere  a  garnishment  proceeding  is  instituted  against 
a  firm,  the  names  of  the  individual  members  of  it  must  be  set  out 

1  Kidder  v.  Packard,  13  Mass.  80. 
[396] 


CHAP,  xxvu.]  ^^^TH  co-debtors,  etc.  §  56'^ 

in  the  process.     A  proceeding  against  "  the  firm  of  A,,  B.,  &  Co." 
charges  no  member  of  it.^ 

§  565.  Where  several  persons,  members  of  a  partnership,  are 
summoned  as  garnishees,  and  one  of  them  answers,  admitthig  a 
debt  due  from  the  firm  to  the  defendant,  it  is  held,  in  Mississippi, 
that  his  answer  will  authorize  a  judgment  against  all  the  part- 
ners.^ 

§  566.  II.  His  lialility  as  affected  hy  the  number  of  the  Defend- 
ants, and  the  number  of  his  Creditors.  "Where  there  are  several 
defendants,  the  property  of  each  is  of  course  liable  for  the  whole 
debt.  In  such  case,  therefore,  if  it  appear  that  the  garnishee  is 
indebted  to  one  or  more  of  the  defendants,  though  not  to  all,  he 
will  be  charged.^  But  where  a  garnishee  is  indebted  to  several 
persons  jointly,  an  important,  and,  in  one  of  its  aspects,  a  vexed, 
question  arises,  whether,  in  respect  of  that  indebtedness,  he  can  be 
charged,  as  garnishee  of  part  of  his  creditors.  This  question  will 
be  considered  under  two  heads :  I.  In  relation  to  Partnerships ; 
and  11.  In  relation  to  other  cases  of  joint  creditors  of  the  gar- 
nishee. 

§  567.  I.  Partnerships.  The  attachment  of  a  debt  due  to  a 
copartnership,  in  an  action  against  one  of  the  partners,  is  justly 
distinguishable  from  the  seizure  on  attachment  or  execution  of 
tangiljle  effects  of  the  firm  for  the  same  purpose.  Hence  we  find 
the  Supreme  Court  of  Alabama  holding,  in  the  same  case,  that 
partnership  property  may  be  sold  to  pay  the  debt  of  one  partner, 
but  that  a  debt  due  to  a  firm  cannot  be  taken  by  garnishment  for 
that  purpose.  The  reason  assigned  is,  that,  in  the  case  of  a  sale, 
the  property  is  not  removed,  and  cannot  be  appropriated  until  all 
liens  upon  it,  growing  out  of  or  relating  to  the  partnership,  are 
discharged ;  while  in  the  other  case,  the  judgment  against  the 
garnishee,  if  acquiesced  in,  changes  the  right  of  property,  and 
devests  the  copartner's  title  to  tlie  property  attaclied ;  which  can- 
not be  done  so  long  as  the  partnership  accounts  remain  unsettled, 

^  Reid  V.  McLeod,  20  Alabama,  576. 

2  Anderson  v.  Wanzer,  5  Howard  (Mi.),  587. 

8  Thomp.son  i-.  Taylor,  13  Maine,  420;  Stone  v.  Dean,  5  New  Hamp.  502;  Parker 
V.  Guillow,  10  Ibid.  103;  Caignett  v.  Gilbaud,  2  Yeates,  35;  Locket  v.  Child,  11  Ala- 
bama, 640. 

[3971 


§  5G9  GARNISHEE'S   LIAniLITY  [CIIAP.  XXVIL 

or  its  debts  unpaid.^  Much  force  is  given  t^o  this  reason,  when  it 
is  remembered  that  garnishment  is  essentially  a  legal  proceeding, 
and  not  adapted  for  the  ascertainment  and  settlement  of  equitable 
rights  between  the  garnishee  and  the  defendant ;  and  that  a  court 
of  law  has  no  power  to  impound  the  debt,  until,  by  an  adjustment 
of  all  the  partnership  affairs,  it  shall  appear  whether  the  defend- 
ant has  any  and  what  interest  in  the  general  surplus,  or  in  the 
particular  debt  so  impounded.^ 

§  568.  In  Massachusetts,  this  question  came  up  for  decision  at 
an  early  day,  and  the  court,  while  deciding  that  the  garnishee 
could  not  be  charged,  intimated  that  if  a  partner  of  the  firm  were 
summoned,  and  disclosed  that  the  defendant  had  an  interest  in 
the  partnership  effects  after  all  the  partnership  debts  were  paid, 
the  garnishee  might  be  held.^  There  are,  however,  great  and 
apparently  insuperable  difficulties  in  the  way  of  such  an  investi- 
gation, which  will  immediately  occur  to  the  legal  mind,  and  de- 
monstrate its  impracticability.  The  same  point  came  up  before 
Justice  Story,  on  the  circuit,  in  a  case  where,  in  a  suit  against  G. 
&  G.,  the  garnishee  answered  that  he  was  indebted  to  G.  &  L. ; 
one  of  the  defendants  being  a  member  of  both  firms.  The  court, 
in  deciding  against  the  liability  of  the  garnishee,  observed :  "  In 
order  to  adjudge  the  trustee  responsible  hi  this  suit,  it  must  be 
decided,  that  the  funds  of  one  partnership  may  be  applied  to  the 
payment  of  the  debts  of  another  partnership,  upon  the  mere  proof 
that  the  principal  debtor  has  an  interest  in  each  firm.  If  this  be 
correct,  it  will  follow  that  a  separate  creditor  of  one  partner  will 
have  greater  equitable,  as  well  as  legal  rights,  than  tliQ  partner 
himself  has.  The  general  rule  undoubtedly  is,  that  the  interest 
of  each  partner  in  the  partnership  funds  is  only  what  remains 
after  the  partnership  accounts  are  taken ;  and  unless  upon  such 
an  account  the  partner  be  a  creditor  of  the  fund,  he  is  entitled 
to  nothing.  And  if  the  partnership  be  insolvent,  the  same  effect 
follows."  * 

§  569.   In  Connecticut,  this  subject  was  elaborately  and  ably 

1  Winston  v.  Ewing,  1  Alabama,  129. 

2  Johnson  v.  King,  6  Humphreys,  233. 

3  Fisk  I'.  Herrick,  6  Mass.  271 ;   Upham  v.  Naylor,  9  Ibid.  490;   Hawes  v.  Waltham, 
18  Pick.  451 ;  Bulfinch  v.  Winchenbach,  3  Allen,  161. 

*  Lvndon  v.  Gorhara,  1  Gallison,  367.     See  Upham  i\  Naylor,  9  Mass.  490. 
[398] 


CHAP.  XXVII.]  WITH   CO-DEBTORS,  ETC.  §  569 

considered,  in  a  case  where  there  were  three  members  of  a  firm  to 
which  the  garnishee  was  indebted,  and  he  was  garnished  in  a  suit 
against  one  of  them.  There  the  court  said :  "  The  creditor  can, 
by  a  foreign  attachment,  take  nothing  but  what  the  absconding 
debtor  was  entitled  to  ;  and  the  property  of  one  man  ouglit  not  to 
be  taken  to  pay  the  debt  of  another.  But  the  rule  claimed  by  the 
plaintiffs  would  violate  both  these  principles.  It  is  well  known, 
that  in  partnerships,  the  effects  do  not  usually  belong  to  the  part- 
ners equally,  in  proportion  to  the  number.  Sometimes,  one  will 
advance  the  capital,  which  is  to  be  returned,  while  the  other  is  to 
transact  the  business,  and  the  profits  only  are  to  be  shared  between 
them.  The  effects  might  be  wanted,  not  only  to  pay  the  partner- 
ship debts,  but,  on  a  settlement  of  the  accounts,  the  partner  in  the 
execution  might  be  a  debtor  of  the  partnership.  If,  then,  we  con- 
sider them  tenants  in  common,  and  permit  a  creditor  to  sell  one 
half  to  pay  the  separate  debt  of  one  partner,  we  shall,  in  many 
instances,  suffer  the  property  of  one*  man  to  be  taken  to  pay 
the  dijbts  of  another ;  and  give  to  a  separate  creditor  of  a  part- 
ner a  right  over  the  efibcts  of  a  partnership,  which  such  partner 
could  not  exercise;  and  if  the  purchaser  should  be  allowed  to 
take  possession  of  the  effects,  he  might  dissolve  or  destroy  the 
partnership. 

"  It  may  be  asked,  on  what  ground  could  the  judgment  in  this 
case  be  rendered  for  ane  third  of  the  debt  due  from  the  defendants 
to  the  partnership,  of  which  the  absconding  delitor  was  one  ? 
There  was  no  evidence  respecting  the  state  of  the  partnership 
concerns  ;  what  capital  each  partner  advanced  ;  what  each  owned ; 
and  whether  the  partnership  was  solvent.  Suppose  the  whole  debt 
due  from  the  garnishee  should  be  wanted,  to  pay  the  partnership 
debts  ;  or  that  the  defendant  should  be  found  a  debtor,  on  settlins: 
his  accounts  ;  then  the  judgment  could  not  be  right.  While  the 
interest  of  the  defendant  was  a  matter  of  uncertainty,  how  could 
a  judgment  be  rendered  for  a  sum  certain  ? 

"It  is,  however,  insisted  that  the  garnishee  is  bound  to  state 
the  accounts  of  the  defendant  with  the  partnership,  and  ascer- 
tain the  balance  due  to  the  defendant.  But  this  would  be  to 
^require  an  impossibility  ;  for  he  has  no  control  of  their  books, 
and  no  possible  legal  mode  of  compelling  a  settlement  of  their 
accounts. 

"  It  is  furtlier  said,  if  the  plaintiffs  have  recovered  more  than 

[399] 


§  571  GARNISHEE'S   LIAIULITY  [cMAI'.  XXVII. 

the  proportion  of  the  defendant  in  this  deht,  and  it  should  ho 
wanted  for  the  i)aymcnt  of  partnership  delfts,  the  other  partners 
may  call  them  to  account,  and  recover  hack  such  money.  At  this 
rate,  a  judgment  may  he  rendered  in  fiivor  of  a  man  for  a  sum 
certain,  with  a  liability  to  refund  the  whole,  or  a  part  of  it,  on 
some  contingency.  It  is  sufficient  to  state  the  proposition,  to 
show  the  absurdity  of  it.  What  right  can  a  court  have  to  say, 
that  a  certain  part  of  a  debt  due  to  a  partnership  may  be  taken 
to  pay  the  private  debt  of  a  partner,  in  a  suit  where  the  partners 
are  not  parties  ;  and  then,  if  wanted  to  pay  the  debts  of  the 
partnership,  to  oblige  them  to  resort  to  the  creditor  ? 

"  But  it  further  ap[)ears  to  me,  from  the  nature  of  j)artnerships, 
that  one  partner  cannot  have  a  separate  right  in  any  particular 
debt,  or  article  of  property,  belonging  to  the  partnership,  liable 
to  his  individual  debt ;  but  all  the  elTects  are  a  joint  interest ; 
and  each  partner  can  have  a  separate  interest  only  in  his  share, 
upon  the  winding  up  and  settlement  of  the  partnership  con- 
cerns." ^ 

§  570.  The  position  taken  in  the  decisions  which  have  been 
referred  to,  is  supported  by  the  courts  of  New  Ilampsliire,^  Vcr- 
mont,3  Louisiana,*  :Mississippi,^  Tennessee,^  and  Missouri."  In 
Pennsylvania,"  Maryland,''  and  South  Carolina,''^  the  contrary  doc- 
trine prevails  ;  but  in  the  reported  cases  in  those  States  we  look 
in  vain  for  any  substantial  foundation  of  reason  or  expediency 
upon  which  it  can  rest,  or  for  any  views  calculated  to  shake  our 
confidence  in  the  conclusion,  that  partnership  credits  can  in  no 
case  be  taken,  by  garnishment,  to  pay  the  individual  debt  of  one 
racml)er  of  a  firm. 

§  571.  But  when  the  partnership  has  been  dissolved  by  the 
death  of  one  or  more  partners,  leaving  one  survivor,  it  is  con- 

1  Church  V.  Knox,  2  Conn.  514.  See  the  able  concurring  opinion  of  Bkainard,  J., 
in  this  case. 

2  Atkins  V.  Proscott,  10  New  Ilamp.  120. 
8  Towne  t'.  Leach,  32  Vermont,  747. 

*  Smith  V.  lilcMicken,  3  Louisiana  Annual,  319  ;  Thomas  v.  Lusk,  13  Ibid.  277. 

6  Moblcy  V.  Loubat,  7  Howard  (Mi.),  318.  .  ^ 

6  Johnson  v.  Kin;^,  6  Ilunipbreys,  233. 

T  Kingsley  n.  ;Missouri  Fire  Co.,  14  Missouri,  467. 

8  M'^irty  V.  Ernkn,  2  Dallas,  277  ;  s.  c.  2  Yeates,  190. 

9  WaUace  v.  Patterson,  2  Harris  &  M'llenry,  463. 

w  Schatzill  V.  Bolton,  2  M'Cord,  478  ;  Chatzel  v.  Bolton,  3  Ibid.  33. 
[400] 


CHAP.  XXMl]  WITH   CO-DEBTORS,  ETC.  §  572 

sidered  that,  as  the  sole  surnvuig  partner  is,  in  law,  the  owner  of 
all  the  partnership  effects,  a  debt  due  to  the  late  partnership  may- 
be attached  in  an  action  against  the  survivor.^ 

§  572.  II.  Other  Cases  of  Joint  Creditors  of  the  Garnishee.  An 
interesting  question  arises  as  to  the  liability  of  a  garnishee,  where 
he  is  indebted  to  two  persons  jointly,  and  is  summoned  as  gar- 
nishee of  one  of  them,  when  his  joint  creditors  are  not  partners. 
This,  it  will  be  perceived,  is  a  different  case  from  that  we  have 
been  considering,  and  may  be  sustained  on  principle. 

In  Maine,  the  following  case  arose.  A.  and  B.  contracted  with 
C.  to  cut  and  haul  lumber,  and  went  on  with  the  performance 
of  the  contract ;  and  C,  at  the  time  of  the  garnishment,  was 
indebted  to  them  jointly  in  a  certain  sum  of  money.  The  ques- 
tion was,  whether,  in  respect  of  that  debt,  C.  could  be  charged  as 
garnishee  of  A.  alone  ;  and  tlie  court  said  :  "  The  alleged  trustees 
in  this  case  are  the  holders  of  funds,  of  which  the  principal  debtor 
(the  defendant)  is  entitled  to  a  moiety.  The  defendant  has  it 
not  in  his  power,  without  joining  the  party  entitled  with  him,  by 
any  coercive  process,  to  compel  payment.  The  principal  reason 
for  the  necessity  of  this  joinder  usually  given  is,  that  otherwise 
the  i)arty  indebted  might  be  lial)lc  to  the  cost  and  inconvenience 
of  two  suits  upon  one  contract.  Hence  if  he  himself  sever  the 
cause  of  action,  by  paying  one  of  his  joint  creditors  his  proportion, 
he  is  liable  to  the  several  creditor.  So,  the  law,  in  carrying  out 
its  remedial  provisions,  may  sever  a  contract,  so  as  to  subject 
the  debtor  to  the  liability  of  two  suits  upon  one  contract.  The 
death  of  one  of  two  jointly  contracting  parties,  renders  the  sur- 
vivor and  the  administrator  of  the  deceased  party  each  lial>le  to  a 
several  suit.  So,  if  the  trustee  be  indebted  to  the  principal  in  an 
entire  sum,  beyond  the  amount  wanted  to  satisfy  the  judgment 
recovered  by  the  attaching  creditor,  he  ^vill  remain  liable  to  the 
action  of  his  principal  for  the  residue.  The  trustee  is  but  a  stake- 
holder ;  and  the  law  indenmifies  him  for  the  expense  of  the  suit, 
by  allowing  him  to  deduct  it,  as  a  charge  upon  the  fund  in  his 
hands.  Notwithstanding,  therefore,  if  the  tnistees  are  charged  in 
this  case,  an  entire  liability  will  thereby  be  divided  into  two  parts, 
in  the  judgment  of  the  court  this  objection  cannot  prevail."  ^  In 
Missouri,  the  same  point  was  decided  in  a  case  where  the  garnishee 

1  Knox  V.  Schepler,  2  HiU  (S.  C),  595-  "  Whitney  v.  Munroe,  19  Maine,  42. 

26  [iOl] 


§572  GAHNISlIEfS   LIABILIIV  [cHAl'.  XW  11. 

was  tho  maker  of  a  note  payable  to  two  jointly  ;  but  the  court  Jo 
not  give  at  large  the  reasons  for  their  decision.^ 

The  same  result  was  arrived  at  in  Massachusetts,  in  a  case 
where  the  garnishees  had  in  their  possession  money  belonging  to 
A.  &  B.,  joint  owners  of  a  ship,  the  proceeds  of  the  sale  of  a 
cargo  of  silks,  and  were  garnished  in  an  action  against  B.  It 
was  objected  that  the  garnishees  were  not  liable,  because  the  • 
money  in  their  hands  was  the  joint  property  of  A.  &  B.  On  this 
point  the  court  said  :  "  This  depends  upon  the  question  wliethcr 
A.  &  B.  are  copartners  ;  if  they  are,  the  olijection  is  well  taken, 
as  was  decided  in  the  cases  of  Fisk  v.  Herrick,  6  Mass.  271,  and 
Upham  V.  Naylor,  9  Mass.  400.  These  cases,  however,  relate  to 
copartnershijjs,  properly  so  called,  and  not  to  mere  tenancies  in 
common  or  joint  ownerships  of  personal  property  ;  and  the  reason 
is  that  no  one  j)artncr  can  have  any  separate  interest  in  a  copart- 
nersliip  debt,  if  he  himself  is  indebted  to  the  copartnership  to  an 
amount  which  will  absorb  his  proportion  ;  so  that  his  share  shall 
not  be  taken,  until  it  shall  be  made  to  appear  that  it  is  free  from 
the  lien  of  the  other  partners.  But  it  is  not  so  witli  tenants  in 
common  of  a  ship,  or  persons  jointly  interested  in  a  cargo,  they 
not  being  partners,  for  they  have  no  lien  upon  each  other's  share, 
and  arc  not  answerable  for  each  other's  debts.  And  this  has  been 
settled  in  several  cases  similar  to  the  one  before  us. 

"  Now  what  is  the  interest  of  B.  in  the  funds  in  the  hands  of 
the  garnishees?  A.  &  B.  were  the  owners  of  a  ship,  and  concerned 
together  in  a  voyage.  It  is  to  be  presumed  that  each  furnished 
his  share  of  the  outward  cargo.  The  ship  brings  home  silks, 
which,  by  reason  of  A.  &  B.  being  ship-owners,  Ijccome  their  prop- 
erty. They  are  tenants  in  common  nntil  tlie  property  is  divided. 
When  sold,  they  have  the  same  interest  in  the  proceeds.  Neither 
can  claim  more  than  his  share  on  account  of  debts  due  from  the 
other.  They  liave  no  lien.  The  conseqnence  is,  that  a  creditor 
of  either  may  attach  a  moiety,  and,  when  sold  by  a  factor,  though 
he  may  discharge  himself  by  payment  to  either,  if  they  united 
in  the  deposit,  he  is  nevertheless  debtor  to  each,  and  is  answer- 
able to  the  creditor  of  eaclvwhen  the  funds  are  attached  in  his 
hands."  2 

1  Miller  v.  Richardson,  1  Missouri,  310. 

2  Thorndike  v.  DeWolf,  6  Pick.  120.  In  Hanson  v.  Davis,  19  New  Hamp.  1-33,  the 
Superior  Court  of  New  Hampshire  take  the  contrary  ground.  A.  was  summoned  as 
trustee  of  B.,  and  disclosed  that  he  had  executed  certain  notes  to  B.  &  C,  jointly,  and 

[402] 


CHAP.  XXVII  ]  WITH   CO-DEBTORS,  ETC.  §  572 

There  is  in  Massachusetts  a  later  case,  which  might  seem  to 
militate  against  this  doctrine,  and  therefore  demands  notice.^     A. 
&  B.  contracted  with  a  town  to  erect  a  barn  and  do  some  other 
work,  for  a  stipulated  compensation.     After  the  work  was  done, 
the  town  was  garnished  in  two  suits  against  B.,  and  in  its  answers 
disclosed  its  indebtedness  to  A.  &  B.  jointly,  and  judgments  were 
rendered  against  it  in  respect  of  B.'s  share  of  the  debt.     After- 
wards A.  &  B.  joined  in  an  action  against  the  town,  and  the  judg- 
ments rendered  against  the  town,  as  garnishee  of  B.,  were  set  up 
in  bar  pro  tanto  of  the  recovery.     The  court,  after  referring  to  the 
garnishments,  say :  "  In  each  of  those  suits  the  town  was  charged, 
and  a  portion  of  the  debt  due  to  the  plaintiffs  jointly,  was  thus 
adjudged  liable  to  be  appropriated  by  process  of  law,  to  the  i)ay- 
ment  of  the  several  debt  of  one  of  them.     This,  we  think,  was 
erroneous.     It  seems  to  be  now  settled  by  authorities,  that  a  joint 
debt  cannot  thus  be  severed  and  appropriated,  in  whole  or  in  part, 
to  discharge  tlie  several  debt  of  one."     In  support  of  this  broad 
and  general  proposition,  the  court  refer  to  cases  already  herein 
considered,  of  attaching  partnership  credits  for  the  debt  of  part 
of  the  firm,  and  then  proceed  with  remarks  which  ai)ply  only  to 
such  a  case.    The  case  before  the  court  is  evidently  treated  as 
one  of  partnership ;  and  the  court  conclude  their  opinion  on  this 

that  the  puyecs  were  equally  interested  in  them.     The  court  said :  "  The  question  is, 
whether  A.'ian  »)e  char^^-d  as  trustee  of  the  defendant  for  any,  and  for  what  part  of 
the  notes.     We  are  of  oi)inion  that  he  cannot  he  char-^-d  for  any  part.     The  notes  are 
due  to  B.  &  C,  jointly,  neither  owiiin*,'  any  i)articular  note  or  part  of  the  debt.     If  a 
payment  is  made  to  one,  it  is  for  thr  l)enu(it  of  both,  and  the  money  is  the  money  of 
both.     The  trustee,  it  is  plain,  cannot  be  charged  for  the  whole  note ;  and  if  he  wero 
to  be  charRcd  for  one  half,  that  does  not  sever  the  joint  proi^erty,  and  that  half  stdl 
bclon-'s  aTmuch  to  C.  as  to  the  defendant..     And  if,  after  beinj,'  so  char-ed,  the  trustee 
were  "o  be<«n.e  unable  to  j.av  the  balance,  C.  ou-ht  to  lose  but  one  half  of  that,  and 
would  l>e  entitled  to  recover  of  the  plaintitf  one  half  of  what  he  had  received  ;  that  is, 
if  the  attaehin-  creditor  had  no  ^jreater  ri-ht  than  his  debtor.     A  trustee  cannot  be 
char},'ed  where  the  interest  of  the  principal  is  merely  a  contingent  interest.     Here  if  the 
principal  debtor.  B.,  die,  the  note  survives  to  C,  the  other  payee,  and  he  alone  can  en- 
force payment  of  it.     B.'s  interest  is.  therefore,  contin{,'ent,  and  may  become  altotrether 
cxtin-'uished.     The  rights  of  C,  the  other  payee,  are  injuriously  affected  by  this  at- 
tachment.    "WTiile  this  process  is  pending,  how  can  C.  sue  for  the  residue,  or  enforce 
its  payment?     Must  he  wait  until  this  suit  is  at  an  end.  and   then  if  the  trustee  is 
char-cd,  as  debtor  of  B.,  for  one  half  of  the  notes,  shall  C.  sue  for  the  balance  in  his 
own  "name,  or  in  the  name  of  both  ?     On  the  theory  of  the  plaintiff,  the  trustee  is  to  be 
charged  as  the  debtor  of  B..  for  one  half  of  the  notes.     B.,  then,  has  no  longer  any 
interest  in  the  residue  of  the  note.     Yet  how  is  C.  to  control  and  collect  it,  and  what 
prevents  B.  from  receiving  it  and  gi>ing  a  discharge  ?     Upon  the  whole,  we  do  not  see 
how,  consistently  with  the  rights  of  the  payees  of  these  notes,  the  trustee  can  be  holden, 
and  he  must,  therefore,  be  discharged."     See  French  v.  Rogers,  16  New  Hamp.  177. 
»  Hawes  v.  Waltham,  18  Pick.  451. 

[403] 


§  572  GARNISHEES   LIABILITY   WITH    CO-DEBTORS.      [cHAP.  XXVO. 

branch  of  the  controversy  with  these  words :  "  It  appears,  by  the 
answers  of  the  town,  that  they  were  indebted  to  the  two  jointly, 
u'ithout  ani/thing  further  appearing.  In  such  a  case  the  court  are 
of  opinion  that  they  could  not  be  charged,  in  a  suit  against  one 
only."  We  are  left  to  the  conclusion  that,  if  it  had  appeared  to  the 
court  that  the  debt  was  due  to  A.  k  B.  jointly,  Init  nut  as  partners, 
the  decision  might  have  been  otherwise.  Whether,  however,  the 
court  intended  to  give  such  an  intimation,  or  not,  it  is  quite  cer- 
tain that  the  question  of  the  liability  of  a  garnishee  under  such 
circumstances  was  not  passed  upon  by  the  court. 
[404] 


CHAP.  XXVIU."]    GARNISHEE  AS  PARTY  TO  A  NOTE.  §  575 


CHAPTER   XXVIII. 

THE   garnishee's   LIABILITY   AS   A    PARTY   TO   A    PROIkHSSORY  NOTE. 

§  573.  Various  questions  of  interest  arise  in  the  consideration 
of  this  subject.  The  attempt  to  subject  the  maker  of  a  promissory 
note  to  garnishment,  in  a  suit  against  the  payee,  necessarily  brings 
to  light,  in  some  of  its  aspects,  serious  difficulties.  Principal 
among  these  is  the  danger  that  the  maker,  if  subjected  as  gar- 
nishee, may,  without  any  fault  on  his  part,  be  compelled  to  pay 
the  amount  of  the  note  a  second  time.  That  such  a  result  is  pos- 
sible, is  enough  in  itself  to  give  importance  to  our  present  inquiries. 
The  subject  will  be  considered,  I.  In  regard  to  unnegotiable  notes, 
and  II.  With  reference  to  negotiable  notes. 

§  574.  Unnegotiable  Notes.  By  notes  of  this  description  are 
meant  all  notes  which  are  not  governed  by  the  law  merchant. 
Usually  the  maker  is  entitled  to  every  defence  against  the  payee, 
arishig  at  any  time  before  he  receives  notice  of  the  assignment  of 
the  note.  In  some  States,  however,  he  can  interpose  between 
himself  and  a  bond  fide  assignee,  no  defence  which  arose  after  the 
assignment  was  in  fact  made,  though  he  had  no  knowledge  of  its 
having  been  made. 

§  575.  Wherever  notice  of  an  assignment  is  required  to  be 
given  by  the  assignee  to  the  maker,  there  can  be  no  good  reason 
why  the  latter  should  not  be  held  as  garnishee  of  the  payee,  at 
any  time  before  he  receives  such  notice ;  but,  on  the  contrary,  un- 
questionable reasons  why  he  should.  He  is  indebted  to  the  payee 
by  written  promise,  and  if  in  respect  of  that  indebtedness  he  be 
charged  as  garnishee,  he  is  in  no  sense  injured  thereby,  for  no 
assignment  made  after  he  is  garnished  can  prevent  his  setting  up 
as  a  defence  against  the  note  in  the  assignee's  hands,  his  payment 
as  garnishee,  even  though  the  assignee  acquired  title  lond  fide, 
and  was  ignorant  of  the  garnishment.^  In  such  case  the  laches 
of  the  assignee  occasions  his  loss. 

^  Dore  V.  Dawson,  6  Alabama,  712  ;  Robinson  v.  Mitchell,  1  Harrington,  .365  ;  Covert 
r.  Nelson,  8  Blackford,  265;  Comstock  v.  Farnum,  2  Mas3.  96;  Clark  v.  King,  Ibit 

[405] 


§  578  GARNISHEE  AS  PARTY  TO  A  NOTE.    [ciIAr'.  XXVTll. 

§  570.  "When  the  maker  of  an  iinncgotiablo  note  is  thus  gar- 
nished, if  he  have  received  notice  of  an  assignment  of  the  note, 
made  before,  the  garnishment,  he  should  state  it  in  his  answer  ; 
or  if  he  be  afterward  notified  of  such  antecedent  assignment,  in 
time  to  amend  his  answer  before  judgment  is  rendered  tliereon, 
he  should  make  it  known  to  the  court ;  and  if  he  fail  to  do  so,  he 
cannot  avail  himself  of  the  payment  of  the  judgment  rendered 
against  him  as  garnishee,  in  defence  of  an  action  brought  by  the 
assignee.^  So,  if  he  have  been  sued  on  tlie  note  by  })orsons  styling 
themselves  assignees.^  And  it  matters  not  whether  the  informa- 
tion he  has  received  of  an  assignment  be  in  fact  true  or  false  ; 
it  is  equally  his  duty  to  make  it  known  in  his  answer.''  And  if 
the  garnisliee,  at  any  time  before  payment  of  the  judgment 
against  him,  receive  notice  of  an  assignment  made  before  he 
was  garnished,  and  fail  to  take  proper  steps  to  prevent  payment 
of  the  judgment,  it  is  said  that  such  payment  will  be  in  his  own 
wrong,  and  will  constitute  no  valid  defence  to  the  claim  of  the 
assignee.* 

§  577.  These  rules  apply  with  equal  force  where,  as  at  the 
common  law,  no  action  can  be  maintained  on  such  notes  except 
in  the  name  of  the  payee,  and  where,  as  in  many  States,  the 
assignee  is  authorized  by  statute  to  sue  in  his  own  name.  In  the 
latter  case,  the  assignee  is  invested  with  a  legal  right,  which  he 
may  enforce  by  an  action  at  law,  and  it  is  therefore  complete. 
In  the  former,  the  right  is  merely  equitable,  and  not  susceptible 
of  enforcement  by  the  assignee  in  his  own  name,  except  in  a  court 
of  equity  ;  but  it  is  none  the  less,  in  this  proceeding,  entitled  to 
the  protection  of  the  courts,  which  with  great  uniformity  have 
sustained  equitable  assignments  against  attachment  for  the  debts 
of  the  assignors.^ 

§  578.    What  will  be  a  sufficient  statement  of  an  assignment  in 

524 ;  Junction  R.  R.  Co.  v.  Clencay,  13  Indiana,  161 ;  Shctler  v.  Thomas,  16  Ibid.  22.3. 
In  Alabama  no  notes  are  recognized  as  governed  by  the  principles  of  the  law  merchant, 
but  such  as  are  made  payable  in  Bank. 

1  Crayton  v.  Clark,  1 1  Alabama,  787  ;  Foster  v.  White,  9  Porter,  221  ;  Colviu  v. 
Rich,  3  ibid.  175  ;  Cross  v.  Haldeman,  15  Arkansas,  200. 

-  Stubblclield  v.  Hagerty,  I  Alabama,  38  ;  Smith  v.  Blatchford,  2  Indiana,  184. 

3  Foster  r.  Walker,  2  Alabama,  177  ;  Wicks  v.  Branch  Bank,  12  Ibid.  594. 

*  Oldham  v.  Ledbettcr,  1  Howard  (Mi.),  43. 

5  See  Cliapters  XXIV.  and  XXXI. 
[406] 


CHAP    XXVIIl]  GARNISHEE   AS   TARTY   TO   A   NOTE.  §  579 

the  answer  of  a  garnishee  miist  depend,  to  some  extent,  upon  the 
force  given  to  the  answer  under  the  system  of  practice  in  each 
State.  In  Massachusetts,  at  the  time  when  the  garnishee's  lia- 
bility was  determined  solely  by  his  answer,  and  no  extrinsic 
evidence,  tending  either  to  fix  or  defeat  his  liability,  could,  even 
with  the  consent  of  plaintiff,  defendant,  and  garnishee,  be  intro- 
duced, it  was  held,  that  the  assignee,  in  order  to  avail  liimself  of 
the  assigiunent,  must  exhibit  to  the  garnishee,  before  he  is  ex- 
amined, satisfactory  evidence  of  a  legal  assignment,  made  before 
the  attachment,  in  order  that  the  garnishee  may,  in  his  answer, 
lay  the  evidence  before  the  court. ^  The  same  rule  jirevails  in 
Maine.^  Hence,  if  such  evidence  be  produced  to  the  garnishee, 
and  embodied  in  his  answer,  it  follows  that  he  cannot  be  charged, 
though  it  aj)pear  that  the  payee  sold  the  note  for  the  express 
purpose  of  absconding  and  defrauding  his  creditors.^ 

§  579.  Where,  however,  as  is  generally  the  case,  the  answer  of 
the  garnisliee  may  be  controverted  and  disproved  ;  and  more 
especially  where,  if  the  answer  sets  up  an  assigiunent  of  the  note, 
the  supposed  assignee  may  be  cited  into  court,  and  required  to 
substantiate  the  assignment  ;  it  cannot  be  considered  necessary 
for  the  garnishee  to  set  forth  in  his  answer  the  evidence  of  the 
assignment ;  it  will  be  sufficient  for  him  to  state  that  he  has  re- 
ceived notice  of  it.  And  when  he  so  states,  no  judgment  can  be 
rendered  against  him  on  the  answer^  whether  the  information  he 
has  received  of  the  assignment  be  true  or  false.  If  the  plaintiff 
suppose  the  notice,  or  the  garnishee's  statement  of  it  to  be  false, 
the  answer  should  be  contested,  and  if  not  contested,  the  gar- 
nishee must  be  discharged  ;  for  it  not  only  does  not  appear  that 
he  is  indebted  to  the  defendant,  l)ut  the  answer  shows  indebted- 
ness to  the  assignee.* 

I  Foster  v.  Sinklcr,  4  Mass.  450  ;  Wood  v.  Partridge,  11  Ibid.  488. 

-  McAllistcT  r.  Brooks,  22  Maine,  80. 

?  Newell  V.  Adatns,  1  D.  Cliipraan,  346 ;  Hutchins  v,  Hawley,  9  Vermont,  295 ; 
Burke  v.  Wiiitconil),  13  Iltid.  421. 

*  Coivin  r.  Rich,  3  Porter,  173  ;  Foster  v.  White,  9  Piid.  221  ;  Foster  n.  Walker,  2 
Alabama,  177;  Wicks  v.  Branch  Bank,  12  Ibid.  594;  Yarborough  v.  Thompson,  3 
Smcdes  &  Marshall,  291  ;  Thompson  v.  Shelby,  Ihid.  296  ;  Cadwalader  v.  Hartley, 
17  Indiana,  520.  In  Illinois  it  is  held,  that  the  mere  statement  by  a  ;ianiishee  in  his 
answer,  that  he  had,  after  his  garnishment,  been  notified  that  his  debt  to  the  defendant 
had  been  assigned  by  the  latter  before  the  garnishment,  without  any  evidence,  or  even 
the  expression  of  an  opinion,  that  the  assignment  was  genuine,  is  not  sufficient  of  itself 
to  discharge  the  garnishee ;  but  will  justify  the  court  in  recjuiring  the  supposed  assignee 

[407] 


§  581  GARNISHEE   AS   PARTY   TO   A   NOTE.  [ciIAP.  XXVIII. 

§  580.  In  the  class  of  cases  to  which  we  have  attended,  it  will 
be  seen  that  the  fact  of  notice  to  the  maker  of  the  assignment 
is  of  first  importance.  Bnt  wliere,  as  in  some  States,  the  assign- 
ment of  a  note  is  per  se  operative  and  effectual,  and  no  notice  to 
tlie  maker  is  required,  how  is  the  maker  to  be  charged  as  gar- 
nishee of  the  payee,  without  liability  to  a  second  })ayment  to  the 
assignee?  If,  ignorant  of  any  assignment,  he,  in  his  answer, 
admit  an  indebtedness  to  the  defendant,  and  judgment  l)e  rendered 
against  him,  and  afterwards  an  assignee  of  tlie  note,  under  an 
assignment  made  before  the  attachment,  claim  its  payment,  can 
it  be  resisted  ?  Shall  the  assignee  be  prejudiced  by  a  proceeding 
to  which  he  was  no  party,  and  of  which  he  was  ignorant  ?  Or, 
shall  he  be  required  to  give  notice  of  the  assignment,  in  order  to 
prevent  his  money  from  being  taken  to  pay  another's  debt,  when 
the  law  vests  the  title  fully  in  him,  without  the  necessity  of  such 
notice  ?  On  tlie  other  liand,  sliall  the  garnishee  be  comijclled  to 
pay  twice  ?  Tiiese  inquiries  serve  to  illustrate  the  difficulty  of 
charging  tlie  maker  of  a  note  wliicli,  thougli  not  negotiable  by  the 
law  merchant,  may  yet  be  assigned  without  notice  to  the  maker, 
so  as  to  cut  off  any  defence  he  might  have  against  the  payee, 
arising  after  the  assignment,  and  before  he  comes  to  the  knowledge 
of  it.  This  difficulty  was  experienced  by  the  Supreme  Court  of 
Missouri,  at  a  time  when  the  statute  (since  changed)  gave  the 
maker  of  an  unnegotiable  note  a  right  of  defence  against  tho 
assignee,  only  in  respect  of  matters  which  existed  prior  to  the 
assignment ;  and  led  that  court  to  the  only  safe  conclusion,  that 
such  notes,  as  regards  liability  to  attachment,  must  be  regarded 
as  on  the  same  footing  with  negotiable  paper.^ 

§  581.  The  cases  previously  cited  refer  altogether  to  notes  exe- 
cuted within  the  States  where  the  decisions  were  made.  A  ques- 
tion of  some  interest  is  presented,  where  the  maker  of  a  note  given 
or  negotiated  in  a  State  where  it  is  held  to  be  negotiable,  is 
garnished  in  a  State  where  the  same  note  would  be  considered 
unnegotiable.  It  has  been  ruled,  that  the  character  of  tlie  note, 
with  reference  to  this  proceeding,  must  be  determined  by  the  law 

to  appear  and  establish  the  genuineness  of  the  assignment ;  in  default  of  which,  the 
judgment  against  the  garnishee  would  be  a  bar  to  a  subsequent  action  by  the  assignee 
Born  V.  Staaden,  24  Illinois,  320. 

1  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  421.     See  Speight  v.  Brock, 
Freeman,  389. 
[408] 


CHAP.  XXVm.]    GARNISHEE  AS  PARTY  TO  A  NOTE.  §  582 

of  the  State  where  it  was  given  or  negotiated  ;  and  that^if  nego- 
tiable there,  the  maker  will  not  be  charged  as  garnishee  of  the 
payee.  Thus,  where  A.,  having,  in  Massachusetts,  executed  a 
negotiable  note,  payable  there  to  B.,  was  summoned  in  Vermont 
as  B.'s  garnishee,  where  the  note  would  not  be  considered  nego- 
tiable, it  was  lield,  that,  inasmuch  as  it  was  by  the  lex  loci  con- 
tractus negotiable,  and  therefore  not  attachable,  it  could  not  be 
attached  in  Vermont  by  garnishing  the  maker.^ 

So,  where  A.  executed  in  Pennsylvania,  and  delivered  to  B.,  in 
New  York,  a  promissory  note,  which,  by  the  law  of  the  former 
State,  was  unnegotiable,  but  by  that  of  the  latter  was  negotiable, 
and,  before  tlie  note  became  due,  A.  was  summoned  as  garnishee 
of  B.,  it  was  held,  that,  though  the  note  was  drawn  in  Penn- 
sylvania, it  was  delivered  and  took  effect  in  New  York,  and  was 
liable  to  the  law  of  that  State,  which  gave  it  the  effect  of  a  foreign 
bill  of  exchange,  and  therefore  the  maker  was  exempted  from 
garnishment  on  account  of  the  payee.^  And  so,  in  Indiana,  as  to 
a  note  executed  and  payable  in  Ohio.^  But  where  a  resident  of 
Vermont  made  a  negotialile  note  to  a  resident  of  Massachusetts, 
payable  at  a  bank  in  Vermont,  where  he  could,  under  the  statute, 
be  subjected  to  garnishment  in  respect  thereof,  he  was  charged, 
because  he  resided,  and  the  note  was  pat/alle,  in  Vermont,  though 
by  the  law  of  Massachusetts  he  could  not  have  been  charged.'^ 

§  582.  II.  Negotiable  Notes.  Any  difficulties  which,  under  any 
system,  attend  the  garnishment  of  the  maker  of  an  unnegotiable 
note,  in  an  action  against  the  payee,  are  trivial  compared  with 
those  which  beset  a  like  attempt  in  the  case  of  a  negotiable  note ; 
no  notice  of  the  transfer  of  which  is  necessary,  and  which  is 
intended  to  pass  from  hand  to  hand  as  cash  ;  each  holder,  before 
its  maturity,  feeling  himself  secure,  and  entitled  to  be  secure, 
against  any  defence  which  the  maker  might  have  against  the 
payee.  The  injurious  results  of  sul)jecting  such  paper  to  attach- 
ment, have  led,  in  some  States,  to  its  express  exception,  by 
statute,  out  of  the  operation  of  the  process.  In  States  where 
the  statutes  are  silent  on  this  point,  the  courts  have  differed  in 
their  views. 

1  Baylies  ».  nou<?hton,  15  Vermont,  626. 

2  Ludlow  V.  Bin-ham,  4  Dallas,  47.     See  Green  v.  Gillett,  5  Daj,  485. 
^  Smith  V.  Blatchford,  2  Indiana,  184. 

*  Emerson  v.  rartridj;e.  27  Vermont,  8. 


§  585  GARNISlIKi;   AS   PARTY   TO   A   NOTE.  [cilAl'.  XXVIII. 

§  583.,  It  is  difficult  to  perceive  any  sul)stanti;il  justificiitioii  of 
Buch  a  proceeding  ;  while,  obviously,  it  disregards  principk-s  which, 
by  general  consent,  have  been  laid  at  the  foundation  of  all  at- 
tempts to  subject  garnishees  to  liability.  It  cannot  be  without 
benefit  to  recur  to  those  princii»les  in  this  connection.  1.  Without 
dissent,  it  is  inipossiljlc  to  charge  a  garnishee  as  a  debtor  of  the 
defendant,  unless  it  appear  affirmativdij  that,  at  tlie  tinio  of  the 
garnishment,  the  defendant  had  a  cause  of  action  against  him,  for 
the  recovery  of  a  legal  debt,  due,  or  to  become  due  l)y  the  elTlux 
of  time.^  2.  The  attachment  plaintifT  can  hold  the  garnishee  re- 
sponsible, (except  in  some  few  cases  which  have  been  referred  to, 
and  have  no  application  here,)  only  so  far  as  the  defendant  might 
hold  him  by  an  action  at  law.  3.  The  garnishee  is,  under  no 
circumstances,  to  be  placed  by  the  garnishment  in  a  worse  con- 
dition than  he  would  otherwise  be.  4.  No  judgment  should  be 
rendered  against  him  as  garnishee,  where  he  answers  fairly  and 
fully,  uidess  it  would  be  available  as  a  defence  against  any  action 
afterwards  brought  against  him,  on  the  debt  in  respect  of  which 
he  is  charged. 

§  584.  Applying  these  well-established  princii)les  to  this  subject, 
it  would  seem  quite  impracticable  to  charge  the  maker  of  a  nego- 
tiable promissory  note,  as  a  garnishee  of  the  payee,  so  long  as 
the  note  is  still  current  as  negotiable  paper.  This  character  it 
bears  until  it  becomes  due  ;  and  no  operation  which  can  be  given 
to  the  garnishment  of  the  maker,  can  change  its  nature  in  this 
respect. 

§  585.  While  the  note  is  current  as  negotiable  paper,  it  is 
usually  very  difficult  for  the  maker  to  say  whether,  at  the  timo 
of  the  garnishment,  it  was  still  the  property  or  in  the  possession 
of  the  payee.  If  he  answers  that  he  does  not  know  whether  it 
was  so  or  not,  certainly  he  should  not  be  charged,  because  it  does 
not  appear  affirmatively  that  he  was,  when  garnished,  indebted  to 

1  Ante,  §  461 ;  Wctherill  v.  Flanagan,  2  Miles,  243 ;  Bridges  v.  North,  22  Georgia, 
52  ;  AJlen  r.  Morgan,  1  Stewart,  9  ;  Pressnall  v.  ]\Iabry,  3  Porter,  105  ;  Smith  v.  Chap- 
man, 6  Ibid.  365;  Mims  v.  Parker,  1  Alabama,  421;  Foster  v.  Walker,  2  Ibid.  177; 
Fortune  v.  State  Bank,  4  Ibid.  385  ;  Connoley  v.  Chceseborough,  21  Ibid.  166  ;  EstUl  v. 
Goodloe,  6  Louisiana  Annual,  122;  Harney  v.  Lllis,  11  Smedes  &  Marshall,  348; 
Brown  v.  Slate,  7  Humphreys,  112;  Da^-is  v.  Pawlette,  3  Wisconsin,  300;  Wilson  v. 
Albriirht,  2  G.  Greene,  125  ;  Pierce  r.  Carleton,  12  Illinois,  358 ;  People  v.  Johnson,  14 
Ibid.  342  ;  Ellicott  v.  Smith,  2  Cranch,  C.  C.  543. 
[410] 


CHAP.  XXVm.]    GARNISHEE  AS  PARTY  TO  A  NOTE.  §  585 

the  defendant ;  and  unless  that  fact  do  so  appear,  no  court  can 
rio-htfuUy  render  judgment  against  him.  The  most  that  can  be 
claimed  is,  that  he  may  be  so  indebted,  which  is  manifestly  in- 
sufficient. The  great  fact  necessary  to  charge  him  is  not  shown, 
but  only  conjectured.  The  whole  matter  is  in  doubt ;  and  while 
in  doubt  tlie  court  cannot  with  truth  record  that  the  garnishee  is 
found  to  be  indebted  to  the  defendant ;  and  unless  that  be  found 
by  the  judgment  of  the  court,  there  is  no  ground  for  charging  the 
garnishee. 

This  difficulty  is  not  removed  by  resorting  to  the  presumption 
that  the  debt,  being  shown  to  have  once  existed,  still  exists. 
Presunii)tions  of  that  description  are  founded  on  the  experienced 
continuance  or  permanency  of  a  state  of  things,  or  a  relation, 
which  is  found  to  have  once  existed.  They  are  available  only 
so  fiir  as  experience  shows  the  state  of  things,  or  the  relation, 
likely  to  continue.  When  it  is  shown  that  the  tiature  of  the  subject 
is  inconsistent  with  the  presumption,  the  presumption  cannot 
arise.  When,  therefore,  it  appears  that  a  garnishee,  before  he 
was  summoned,  made  a  negotiable  note  to  the  defendant,  no 
presumption  arises  that  he  was,  when  garnished,  a  debtor  of  the 
defendant,  in  respect  of  that  note,  because  the  negotiable  char- 
acter of  the  note  is  given  to  it  for  the  very  purpose  of  its  being 
nc<''otiated,  and  experience  teaches  that  sucli  notes  are  not  usually 
held  by  the  payees  until  maturity,  but  are  tJie  subjects  of  incessant 
transfers  by  indorsement  and  dcHvcry. 

But  though  the  garnishee  should  answer  that  the  defendant,  at 
the  time  of  the  garnislnnent,  was  the  owner  of  the  garnishee's 
note,  not  then  due,  no  judgment  should  be  rendered  against  him, 
because  his  oUigation  is  nut  to  pay  to  any  particular  person^  hut  to 
the  holder,  at  maturity,  ivhoever  he  may  he}  Can  the  garnishee,  or 
the  defendant,  or  the  court,  say  that  the  defendant  will  be  the 
holder  of  the  note  at  its  maturity  ?  Certainly  not ;  and  yet  to 
give  judgment  against  the  garnishee,  necessarily  assumes  that 
he  will  be  ;  or,  in  disregard  of  the  contrary  probability,  holds  the 
garnishee  to  a  responsibility  which  he  may  have  to  meet  again  in 
an  action  by  a  bond  fide  holder  at  maturity. 

It  results  hence  that  no  such  judgment  can  be  rendered,  without 
placing  the  garnishee  in  a  worse  situation  than  he  would  otherwise 

1  Sheets  v.  Culver,  14  Louisiana,  449;  Kimhall  v.  Plant,  Ibid.  511;  McMillan  v. 
Richards,  9  Califonua,  365 ;  Gregory  v.  Hiygins,  10  Ibid.  339. 

[411] 


§  58G  GARNISHEE   AS   PARTY   TO   A  NOTE.  [CHAP.  XXVIIL 

be  in,  by  requiring  liim  to  pay  to  the  plaintiff  money  which  he 
may,  and  probably  will,  afterwards  be  compelled  to  pay  again  to 
an  innocent  holder  of  the  note.  It  is  no  answer  to  this  to  say, 
that  lie  may  not  be  compelled  to  pay  a  second  time  ;  for  the 
presumption  from  the  character  of  the  paper  is  the  other  way ; 
and  the  mere  liability  to  such  second  payment  is  sufficient  to 
place  him  in  a  worse  condition  than  he  would  otherwise  be  in. 
The  only  way  to  avoid  this  is  to  give  the  garnishment  the  effect  of 
desti'oying  the  negotiability  of  the  note  ;  a  proposition  which  bears 
on  its  face  its  own  condemnation. 

Finally,  this  proceeding  clearly  violates  the  undoubted  principle 
that  no  judgment  can  properly  be  rendered  against  a  garnishee, 
who  fully  and  truly  answers,  unless  it  will  avail  him  as  a  defence 
against  any  one  who  afterwards  attempts  to  recover  the  same  debt 
from  him  by  action.  This  important  rule  can  in  no  case  be 
dispensed  with,  without  manifest  injustice  to  the  garnishee.  It 
is  not  sufficient  that  the  garnishee  may  be  protected  ;  it  is  the 
duty  of  the  court,  with  the  whole  case  before  it,  to  ascertain 
whether  its  judgment  will  be  effectual  to  that  end  ;  and  if  it  do 
not  appear  that  it  will,  it  sliould  not  be  given.  Manifestly,  then, 
in  this  case,  no  judgment  should  be  given  against  the  garnishee, 
because  it  will  not  avail  him  as  a  defence  to  a  suit  by  a  bona  fide 
holder,  who  acquires  title"  to  the  note  before  its  maturity.  He  is 
no  party  to  the  judgment ;  his  rights  are  not  passed  upon  by  the 
court ;  and  it  is  simply  absurd  to  claim  that  he  is  concluded  or 
affected  by  the  judgment.  And  yet  no  court  can  consistently 
sustain  the  attachment  of  negotiable  paper,  while  it  is  still  cur- 
rent, without  claiming  for  its  judgment  conclusive  effect  in  favor 
of  the  garnishee  against  all  the  world,  —  in  which  case  a  bond 
fide  holder  may  lose  the  amount  of  the  note,  —  or  leaving  the 
door  open  for  the  garnishee  to  be  compelled  to  pay  the  same  debt 
a  second  time. 

§  586.  The  only  expedient  which  has  yet  been  suggested  foi 
avoiding  the  difficulties  attending  the  garnishment  of  the  maker 
of  a  negotiable  note  while  current,  originated  with  the  Supreme 
Court  of  Missouri ;  by  which  it  was  at  one  time  intimated,^  (but 
afterwards  expressly  decided  the  other  way ,2)  that  an  indorsee, 

1  Quarles  v.  Porter,  12  Missouri,  76  ;  Colcord  v.  Daggett,  18  Ibid.  557. 

2  Funkhonser  v.  How,  24  Jlissouri,  44  ;  Dickey  v.  Fox,  Ibid.  217. 
•  [412] 


CHAP.  XX\Tn.]    GARNISHEE  AS  P.^RTY  TO  A  NOTE.  §  588 

having  no  notice  of  the  attachment,  might  recoTcr  back  from  the 
attachment  plaintiff  the  amount  recovered  by  him  from  the  maker, 
as  o-arnishce  of  the  payee.     While  it  is  admitted  that  this,  at  least, 
should  be  done  for  an  indorsee  under  such  circumstances,  by  the 
court  which  has   arbitrarily  seized   upon   his   property,  various 
inquiries  at  once  arise.     Why,  and  by  what   authority,   is   the 
legal  recourse  of  the  indorsee  against  the  maker  of  the  note  thus 
summarily  cut  off,  without  his  knowledge  or  consent  ?     By  what 
rule  or  precedent  is  a  judgment  to  which  he  was  no  party,  and  of 
which  he  had  no  notice,  interposed  between  him  and  his  debtor  ? 
Upon  what  principle  of  law,  or  justice,  or  right,  is  his  property 
appropriated  to  pay  the  debt  of  another  ?     What  right  has  any 
court,  against  his  will,  to  destroy  his  relation  of  creditor  to  the 
maker  of  the  note,  and  constitute  him  creditor  of  a  stranger  ? 
What  justice  is  there  in  compelling  him  to  follow,  perhaps  to  a 
distant  State,  the  attachment  plaintiff,  to  recover  by  legal  resort 
that  which  the  maker  would  have  paid  at  home  without  such 
resort,  if  he  had  not  been  garnislied  ?     And  when  he  seeks  in  a 
distant  forum  to  enforce  his  claim  against  the  attachment  plaintiff, 
what  guaranty  is  there  that  his  right  will  be  recognized  ?     Until 
these  questions  are  satisfactorily  answered,  consistently  with  estab- 
lished  principles  of  law,  it  is  difficult  to  see  in  the   proposed 
expedient  anything  more  than  an  unauthorized  act  of  judicial 
legislation,  framed  to  avoid,  if  possible,  the  evils  flowing  from  the 
previous  enunciation  of  an  unsound  doctrine. 

§  587.  The  foregoing  considerations  lead  to  the  conclusion  that, 
as  a  general  rule,  the  maker  of  a  negotiable  note  should  not  be 
charged  as  garnishee  of  the  payee,  under  an  attachment  served 
before  the  maturity  of  the  note,  unless  it  be  affirmatively  shoum, 
that,  before  the  rendition  of  the  judgment,  the  note  had  become  due, 
and  teas  then  still  the  property  of  the  payee}  Let  us  now  examine 
the  bearing  of  the  adjudications  on  this  suljyect. 

§  588.  In  several  States,  it  has  been  decided,  on  principle,  un-. 
influenced  by  statutory  provisions,  that  the  maker  of  a  negotiable 

1  This  rule  was,  in  1855,  incorporated  into  the  attachment  hw  of  Missouri;  and  my 
impression  is  that  there  is  a  tendency  towards  its  adoption  elsewhere  by  the  judiciary. 
It  seems  to  me  to  be  the  onlv  one  which  can  allow  of  the  attachment  of  negotiable 
paper  without  interfering  with  the  riffhts  of  third  parties ;  unless  the  sug-cstion  of 
the  Supreme  Court  of  Pennsylvania,  in  Kieffcr  v.  Ehler,  18  Penn.  State,  388,  to  im- 
pound the  note,  should  be  adopted.     See  post,  §  588.  r  « i  ot 


§  588  GARNISHEE  AS  PARTY  TO  A  NOTE.    [CHAP.  XXVm. 

note  shall  not  be  charged  as  garnishee  of  the  payee  while  the  note 
is  still  current.  lu  New  Hampshire,  the  court  said  :  "  The  reason 
of  this  rule  is  founded  upon  the  negotiable  quality  of  the  paper. 
If  the  trustee  could  be  charged  in  such  a  case,  then  it  might 
happen  that  either  a  hond  fide  purchaser  of  the  note  must  lose  the 
amount  of  it,  or  the  maker,  without  any  fault  on  his  part,  be 
compelled  to  pay  it  twice.  To  avoid  such  a  dilemma  the  rule  was 
established."  But,  while  announcing  this  general  doctrine,  the 
court  charged  the  garnishee,  because  it  appeared  that  the  notes 
he  had  given  the  defendant  were,  at  the  time  of  the  garnishment, 
in  the  garnishee's  own  hands,  having,  with  other  notes,  been 
deposited  with  him  by  the  defendant,  to  indemnify  him  for  becom- 
ing the  defendant's  bail.  In  reference  to  this  state  of  facts  the 
court  said  :  "  When  the  process  was  served  upon  the  trustgg,  ho 
had  the  notes  he  had  given  in  his  own  hands,  and  under  his  own 
control ;  and  those  notes  could  not  be  transferred  to  any  other 
person  in  the  ordinary  course  of  business,  while  he  then  held 
them,  nor  can  he  be  held  to  pay  them  again,  if  he  shall  be  charged 
in  this  suit  on  that  account.  The  reasons  on  which  the  rule  is 
founded  do  not  then  appear  to  exist  in  this  case."  ^ 

In  Vermont,  before  the  revision  of  the  statutes,  in  1836,  it  was 
held,  that  the  maker  of  a  negotiable  note  might  be  charged  as 
garnishee  of  the  payee,  notwithstanding  *an  assignment  of  the 
note  before  the  attachment,  unless  notice  of  the  assignment  had 
been  given  to  the  maker.^  The  particular  provision  which  justified 
this  construction,  was  that  the  maker  of  a  note,  when  sued  by  an 
indorsee,  might  not  only  have  offsets  of  all  debts  due  him  from 
the  payee  before  notice  of  the  indorsement^  but  could  give  in  evi- 
dence anything  which  would  equitably  discharge  him  in  an  action 
by  the  payee.  By  the  statute  of  1836,  this  provision  was  repealed 
in  relation  to  negotiable  notes,  and  the  effect  of  the  repeal  was 
to  put  all  negotiable  notes  on  the  footing  of  mercantile  paper 
in  a  commercial  country.^  Thence  followed  a  change  in  the  de- 
cisions of  the  court ;  and  it  was  afterwards  held,  that  the  negotia- 
tion of  a  note  of  this  character,  before  it  became  due,  required  no 

1  Stone  V,  Dean,  5  New  Hamp.  502.  Since  the  decisions  in  New  Hampshire  stated 
in  the  text,  a  statute  has  been  enacted  in  that  State,  which  subjects  the  maker  of  a 
negotiable  note  to  be  garnished  in  a  suit  against  the  payee,  at  any  time  before  the  note 
is  transferred.  See  Rev.  Statutes  of  New  Hampshire,  of  1843,  ch.  208,  §§  18,  19,  and 
Amoskeag  Man.  Co.  v.  Gibbs,  8  foster,  316. 

2  Bntton  V.  Preston,  9  Vermont,  2.57. 

8  Hinsdill  v.  Safford,  1 1  Vermont,  309. 
[414] 


CHAP.  XXVIII.]  GARNISHEE   AS   PARTY   TO  A  NOTE.  §  588 

notice  to  the  maker,  and  would  defeat  an  aiitecedeut  garnishment 
of  him  in  an  action  against  the  payce.^ 

The  same  court  subsequently  took  stronger  ground,  in  a  case 
where  negotiable  notes  had  hceii  executed,  and  were  not  yet  due, 
and  the  maker  was  summoned  as  garnishee  of  the  payee  ;  and 
said :  "  We  ought  not  to  hold  the  maker  of  the  notes  liable, 
unless  he  could  rely  upon  this  judgment  as  a  complete  defence 
against  the  notes.  This  he  could  not  do,  if,  at  the  time  of  render- 
ing the  judgment,  the  notes  had  been  already  indorsed,  and  the 
indorsee  was  not  before  the  court.  We  cannot  know  that  this  is 
not  the  case.  But  if  we  could  know  that  the  notes  were  now  in 
the  hands  of  the  payee,  in  order  to  hold  the  maker  liable,  we 
must  destroy  the  future  negotiability  of  the-  notes,  and  thus  put 
it  in  the  power  of  the  holder  to  impose  upon  innocent  purchasers, 
or  else  enable  the  holder  to  defrai\d  the  maker  by  negotiating 
the  notes  after  the  judgment  in  the  attachment  suit.  There  seems 
to  be  no  other  mode  of  securing  the  interests  of  all  concerned,  short  of 
denying  all  right  to  attach,  hj  this  process,  the  interest  in  negotiable 
paper  while  ciirrenty^ 

In  Pennsylvania,  the  distinction  between  negotiable  and  unnego- 
tiable  notes  did  not  formerly  prevail.  All  notes  were  there  un- 
negotiable,  though  assignable  in  a  particular  manner  prescribed 
by  law.  Whether  the  maker  of  a  negotiable  note  could  be  held 
as  garnishee  of  the  payee,  received,  nevertheless,  an  early  decision 
in  that  State,  in  the  previously  cited  case  of  a  note  executed  there 
and  unnegotiable,  but  delivered  to  the  payee  in  New  York,  where 
it  was  negotiable,  and  the  maker  of  which  was,  before  the  maturity 
of  the  note,  summoned  as  garnishee  of  the  payee.  The  court  there 
said  :  "  There  is  no  judgment  or  authoritative  dictum,  to  be  found 
in  any  book,  that  money  due  upon  such  a  negotiable  instrument 

1  Hinsdill  v.  Safford,  11  Vermont,  309  ;  Little  v.  Hale,  Ibid.  482. 

2  Hutchins  v.  Evans,  13  Vermont,  541.  This  decision  was  given  in  1841,  and  in  the 
same  year  the  legislature  of  Vermont  passed  a  statute  subjecting  all  negotiable  paper  to 
attachment,  whether  under  or  over  due,  unless  the  same  had  not  only  been  negotiated, 
but  notice  thereof  given  to  the  maker  or  indorser,  before  the  service  of  trustee  process 
on  him.  Williams's  Compiled  Statutes  of  Vermont,  262  ;  Kimball  v.  Gay,  16  Vermont, 
131 ;  Chase  v.  Haughton,  Ibid.  594 ;  Barney  v.  Douglass,  19  Ibid.  98.  And  it  is  there 
held,  that  the  indorsee  of  a  negotiable  note  mnst  give  notice  to  the  maker,  of  the  in- 
dorsement, to  perfect  his  right,  and  defeat  an  attachment ;  and  that  infoi-mation  of  the 
fact  of  the  indorsement,  from  a  mere  stranger  to  the  paper,  is  not  sufficient.  Peck  v. 
Walton,  23  Vermont,  33.  And  where  a  resident  of  Vermont  was  garnished,  who  had 
executed  a  negotiable  note  to  a  citizen  of  Massachusetts,  payable  at  a  bank  in  Vermont, 
he  was  held  to  be  chargeable,  although,  by  the  law  of  ^Massachusetts,  he  could  not  have 

been.    Emerson  v.  Partridge,  27  Vermont,  8.  ^      --i 

[41o] 


§  588  GARNISHEE   AS  TAKTY   TO   A   NOTE.  [CHAP.  XX\in. 

can  bo  attached  before  it  is  payable  ;  and  in  point  of  reason, 
policy,  and  usage,  as  well  as  upon  principles  of  convenience 
and  equity,  we  think  it  would  be  dangerous  and  wrong  to  intro- 
duce and  establish  a  precedent  of  the  kind.  To  adjudge  that 
a  note,  which  passes  from  hand  to  hand  as  cash  ;  on  which  the 
holder  may  institute  a  suit  in  his  own  name ;  which  has  all  the 
properties  of  a  bank-note  payable  to  bearer  ;  which  would  be 
embraced  by  a  bequest  of  money  ;  and  which  is  actually  in  circu- 
lation in  another  State  ;  should  be  affected  in  this  way,  by  a 
foreign  attachment,  would  be,  in  effect,  to  overthrow  an  essential 
part  of  tlie  commercial  system,  and  to  annihilate  the  negotiable 
quality  of  all  such  instruments."  ^ 

Subsequently  the  Supreme  Court  of  this  State  somewhat  modi- 
fied this  decided  position.  In  183G,  a  statute  was  enacted  there, 
contaiuuig  the  following  provision  :  "  From  and  after  the  service 

of  such  writ all  debts  and  all  deposits  of  money,  and  all 

other  effects  belonging  or  due  to  the  defendant,  by  the  person  or 
corporation  upon  which  service  shall  be  so  made,  shall  remain 
attached  in  the  hands  of  such  corporation  or  person,  in  the 
manner  heretofore  practised  and  allowed  in  the  case  of  foreign 
attachment."  In  construing  this  provision,  the  court  considered 
it  broad  enough  to  include  debts  due  by  bills  of  exchange  and 
promissory  notes,  and  that  there  is  nothing  in  their  nature  that 
excludes  them  from  its  operation  ;  but  admitted  that  their  negotia- 
bility renders  the  hold  of  an  attachment  upon  them  very  uncer- 
tain ;  and  held,  that  an  attachment  is  unavailable  against  a  bond 
fide  holder,  for  value,  of  negotiable  paper,  who  obtains  it  after 
attachment,  before  maturity,  and  without  notice.  At  the  same 
time,  the  court  intimated  that  the  negotiation  of  such  paper  by  a 
defendant,  after  he  has  had  notice  of  the  attachment,  is  a  fraud  upon 
the  law,  and  that  the  court  had  power  to  prevent  this,  by  impound- 
ing the  note,  taking  care  that  it  should  be  demanded  at  maturity, 
and  that  proper  notice  should  be  given  to  indorsers,  if  necessary .^ 

In  North  Carolina,  though  it  is  held  that  debts  due  by  negotiable 
paper  may  be  attached,^  yet  in  order  to  charge  the  maker  of  a 

1  Ludlow  V.  Bingham,  4  Dallas,  47. 

2  Kieiter  v.  Ehler,  18  Penn.  State,  388;  Hill  v.  Kroft,  29  Ibid.  186.  The  suggestion 
of  impounding  the  note  is  an  important  one,  and  has  not  before  met  my  observation. 
It  is  certainly  a  very  effectual  method,  where  it  can  be  applied  before  the  actual  transfer 
of  the  note,  and,  if  generally  adopted,  would  do  much  toward  defeating  many  fraudu- 
lent transactions  that  are  covered  by  negotiable  paper. 

3  Skinner  v.  Moore,  2  Devereux  &  Battle,  138. 

[416] 


CHAP,  XX\TII.]  GAENISHEE  AS   PARTY   TO   A  NOTE.  §  588 

negotiable  note  as  garnishee  of  the  payee,  it  must  be  shown  that 
the  payee  had  not  indorsed  the  note  to  some  other  person  before 
its  maturity ;  for  otherwise  it  does  not  appear  that  the  maker  is 
indebted  to  the  payee.^ 

In  South  Carohna,  the  court  refused  to  charge  the  maker  of  a 
negotiable  note,  as  garnishee  of  the  payee,  while  the  note  was  cur- 
rent, though  the  plaintiff  offered  to  give  security  to  indemnify  the 
garnishee  against  the  note.  "The  probability,"  said  the  court, 
"  is  so  great  that  the  absent  debtor  may  have  transferred  negoti- 
able notes,  that  it  would  be  too  great  a  hardship  to  compel  the 
maker  to  pay  the  money,  and  resort  to  his  indemnity,  if  he  should 
be  compelled  to  pay  it  over  again."  ^ 

In  Louisiana,  it  was  decided,  that  the  maker  of  such  a  note 
could  not  be  charged  before  the  note  became  due,  whether  in 
his  answer  he  stated  tliat  he  did  not  know  who  held  his  note,  or 
tliat  he  knew  the  defendant  was  the  owner  of  it  at  the  time  of  the 
garnishment.  "  In  this  case,"  the  court  observed,  "  negotiable 
paper,  supposed  to  belong  to  the  defendant,  is  attempted  to  be 
attached,  by  interrogatories  propounded  to  the  maker,  and  upon 
the  latter  answering  that  he  does  not  know  by  whom  his  notes  are 
held,  he  is  sought  to  be  made  liable  as  if  he  had  actually  declared 
himself  indebted  to  defendant.  Untenable  as  such  a  position 
would  seem  to  be,  an  effort  has  been  made  to  support  it  by  argu- 
ment. It  is  said  the  attachment  was  laid  iii  the  garnishee's  hands 
before  he  had  notice  of  the  transfer  of  his  notes,  and  a  series  of 
decisions  of  this  court  have  been  cited  to  show  that  the  transferree 
of  a  debt  is  only  possessed,  as  regards  third  persons,  after  notice 
has  been  given  to  the  debtor  of  the  transfer  having  been  made  ; 
than  this,  there  is,  perhaps,  no  principle  of  our  laws  better  settled ; 
but  it  obviously  applies  only  to  credits  not  in  a  negotiable  form. 
As  to  notes  indorsed  in  blank,  wliich  circulate  and  pass  from  hand 
to  hand  by  mere  delivery,  it  has  never  been,  nor  can  it  be  pre- 
tended, that  any  notice  of  transfer  is  necessary.  If,  then,  no  such 
notice  is  ever  given,  how  is  a  garnishee  who  has  issued  his  promis- 
sory note,  indorsed  in  blank,  to  know  in  whose  hands  it  happens 
to  be  at  the  precise  moment  when  he  is  called  upon  to  answer  in- 
terrogatories ?  And  if,  perchance,  he  were  to  know  that  his  note 
was  still  the  property  of  the  defendant,  and  were  so  to  declare  it, 

1  Myers  p.  Beeman,  9  Iredell,  116  ;  Ormond  v.  Moye,  11  Ibid.  564. 
■^  Gatfney  v.  Bradford,  2  Bailey,  441. 

27  [417] 


§  588  GARXISUEE   AS   PARTY   TO   A   NOTE.  [ciIAl'.  XXVIIL 

could  such  a  proceeding  restrain  its  negotiability  ?  Could  it  atfect 
the  rights  of  a  bond  fide  holder  ?  Surely  not.  The  ownership  of 
negotiable  paper  is  incessantly  varying,  and  the  obligation  of  the 
maker  of  such  instruments  is  not  to  pay  to  any  particular  person, 
but  to  the  holder,  at  maturity,  whoever  he  may  be.  Thus  it  is 
obvious  that  the  garnishee,  in  this  case,  could  give  no  other  auswer 
than  that  he  has  made,  and  it  is  equally  obvious,  that  by  pursuing 
this  course,  the  plaintiffs  have  attached  no  property  out  of  which 
their  judgment  can  be  satisfied."^ 

In  Texas,  it  was  first  decided  that  the  maker  of  a  negotiable 
note  supposed  to  have  been  negotiated,  cannot  be  charged  as  gar- 
nishee of  the  payee ;  ^  and  afterwards,  that  he  cannot  be  charged 
at  all,  while  the  note  is  current  as  negotiable  paper.*^ 

In  Indiana,  it  was  held,  that  the  maker  of  a  note  executed  and 
payable  in  Ohio,  and  which  by  the  law  of  Ohio  was  negotiable, 
could  not  be  charged  as  garnishee  of  the  payee,  so  as  to  defeat  the 
right  of  an  indorsee,  acquiring  the  note  before  its  maturity.*  Af- 
terward tlie  court  laid  down  the  broad  doctrine,  that  such  maker 
could  not  be  held  as  garnishee  of  the  payee,  without  proof  that 
the  note  actually  remained,  at  the  time  of  the  trial,  in  the  hands  of 
the  latter.^ 

In  Wisconsin,  the  broad  ground  is  taken,  that  the  maker  of  a 
negotiable  note  cannot  be  held  as  garnishee  of  the  payee.^  And 
so  in  Michigan,'^  and  Minnesota.^ 

In  Iowa,  the  rule  was  laid  down  that  the  maker  of  a  negotiable 
mstrument  cannot  be  charged  as  garnishee  of  the  payee,  unless 
the  instrument  has  become  due,  and  is  shown  to  be,  at  the  time 
of  the  garnishment,  in  the  possession  of  the  defendant.^  And  so 
m  California.^*^ 


1  Sheets  v.  Culver,  14  Louisiana,  449;   Kimball  v.  Plant,  Ibid.  511 ;   Erwin  v.  Com 
&  E.  R.  Bank,  3  Louisiana  Annual,  186. 

2  Wybrants  v.  Rice,  3  Texas,  458. 

3  Iglehart  v.  Moore,  21  Texas,  501 ;   Price  v.  Brady,  Ibid.  61  4 ;   Bassett  v.  Grarth- 
waite,  22  Ibid.  230. 

*  Smith  V.  Blatchford,  2  Indiana,  184. 

^  Junction  R.  R.  Co.  v.  Cleneay,  13  Indiana,  161 ;    Stetson  v.  Cleneay,  14  Ibid.  453; 
Cadwaladcr  v.  Hartley,  17  Ibid.  520. 

6  Davis  V.  Pawlette,  3  "Wisconsin,  300;  Carson  v.  Allen,  2  Chandler,  123. 

7  Littlefield  v.  Hodge,  6  Michigan,  326. 

^  Hubbard  v.  Williams,  1  Minnesota,  54. 

^  Commissioners  v.  Fox,  Morris,  48 ;  Wilson  v.  Albright,  2  G.  Greene,  125. 
^^  Gregory  v.  Higgins,  10  California,  339. 

[418]  '    . 


CHAP.  XXVm.]    GARNISHEE  AS  PARTY  TO  A  NOTE.  §  589 

§  589.  Against  this  strong  array  of  reason  and  authority  in 
favor  of  protecting  negotiable  paper  from  attachment  while  it  is 
current,  there  are  some  cases,  to  which  we  will  now  direct  atten- 
tion. The  Supreme  Court  of  Connecticut  considered  that  no 
doubt  existed  that  a  negotiable  note,  before  it  has  been  negotiated, 
may  be  attached  ou  a  demand  against  the  payee,  but  that  the  at- 
tachment was  liable  to  he  defeated  hy  the  transfer  of  the  note,  at  any 
time  before  it  falls  due}  The  sum  of  this  is,  that  the  garnishment 
operates  only  on  the  rather  slender  probability,  that  a  defendant, 
whose  circumstances  justify  an  attachment  against  him,  will  hold 
a  negotiable  note  in  his  possession  until  after  it  becomes  due, 
merely  to  have  its  proceeds  go  to  the  attaching  creditor,  whom  he 
might  have  paid  without  suit,  instead  of  selling  the  note  and  ap- 
propriating the  proceeds  to  his  private  use.  Where,  however,  the 
note,  in  form  negotiable,  has  become  due,  and  is  still  in  the  hands 
of  the  payee,  it  was  held,  in  the  same  State,  that  a  garnishment 
of  the  maker,  in  a  suit  against  the  payee,  would  hold  the  debt  as 
against  a  subsequent  indorsee  who  received  the  note  with  notice 
of  the  garnishment.^ 

In  Tennessee,  it  is  held,  that  a  negotiable  note  may  be  attached  ; 
but  it  is  also  held,  that  the  liability  of  a  garnishee  is  conclusively 
settled  by  his  answer ;  and  if  he  answers  that  he  docs  not  know 
where  the  note  is,  or  who  holds  it,  he  docs  not  admit  indebtedness 
to  the  defendant,  and  cannot  be  charged,  although  at  the  date  of 
the  answer  the  note  may  be  over  due ;  for  it  may  have  been  as- 
signed before  it  fell  due.  But  when  the  garnishee  answers  that 
he  was  indebted  at  the  time  of  the  garnishment,  and  it  appears 
that  the  note  had  not  been  assigned  before  it  was  dishonored  for  non- 
pat/ment,  he  is  liable.^  These  views  were  entertained  also  in  Mis- 
sissippi.^ 

In  Missouri,  it  has  always  been  held,  that  negotiable  paper  may 
be  attached.^  In  the  earliest  reported  case  in  that  State,  involving 
the  question,  it  was  decided,  that  in  order  to  charge  the  maker  of 
such  paper  in  an  action  against  the  payee,  the  plaintiff  must  provQ 

1  Enos  V.  Tnttle,  3  Conn.  27. 

-  Culva-  r.  Parish,  21  Conn.  408. 

8  Huff  V.  Mills,  7  Yerger,  42 ;  Turner  v.  Armstrong,  9  Ibid.  412 ;  Moore  v.  Greene, 
4  Humphreys,  299 ;  Daniel  v.  Rawlings,  6  Ibid.  40.3. 

*  Yarborough  v.  Thompson,  3  Sraedes  &  Marshall,  291 ;  Thompson  v.  Shelby, 
Ibid.  296. 

"  Scott  I'.  Hill,  3  Missouri,  88 ;  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Ibid.  421  ; 
Quai-les  v.  Porter,  12  IbiJ.  76;  Colcord  v.  Daggett,  18  Ibid.  557. 

[419] 


§  589  GARNISHEE  AS  PARTY  TO  A  NOTE.    [CHAP.  XXVIIL 

that,  at  the  time  of  the  garnishment,  the  defendant  was  the  holder 
of  the  note.^  The  court  once  went  so  far  as  to  sanction  a  judg- 
ment against  the  maker  of  a  negotiable  note,  though  he  stated  in 
his  answer  that  he  had  been  informed  and  believed  that  the  note 
was  assigned,  for  a  valualjle  consideration,  before  the  garnishment;^ 
but  in  another  case,  subsequently,  it  was  ruled  otherwise.^  The 
court  expressed  themselves  sensible  of  the  difficulties  that  exist  in 
holding  that  debts  evidenced  by  negotiable  paper  may  be  attached 
in  the  hands  of  the  payer,  particularly  as  the  statute  prescribes  no 
mode  by  which  an  assignee  can  be  brought  before  the  court,  and 
have  his  rights  litigated.  "  But,"  say  the  court,  "  as  the  judgment 
is  not  conclusive  against  him,  unless  he  has  notice,  and  chooses  to 
come  m  and  interplead,  he  would  have  a  right,  at  any  subsequent 
time,  before  the  money  was  paid  over  to  the  attaching  creditor,  to 
arrest  the  payment,  or,  after  payment,  a  right  to  his  action,  to  recover 
it  hack."  *     This  position,  however,  was  afterwards  abandoned.^ 

In  Maryland,  the  courts  have  gone  to  greater  lengths  in  sustain- 
ing the  attachment  of  negotiable  paper  than  in  any  other  State. 
It  was  there  held,  at  an  early  day,  that  the  garnishment  of  the 
maker  of  a  note  in  a  suit  against  the  payee,  before  the  note  is 
passed  away  by  the  latter,  whether  before  or  after  it  becomes  due, 
will  be  sustained.^  This,  of  course,  involves  the  total  destruction 
of  the  negotiability  of  the  note,  and  constitutes  a  fit  foundation  for 
a  subsequent  unexampled  decision  of  the  Court  of  Appeals  of  that 
State,  holding  that,  where  the  maker  of  a  negotiable  note  is,  be- 
fore its  maturity,  summoned  as  garnishee  of  one  who  then  owns 
the  note  as  an  indorsee,  and  judgment  is  rendered  against  him, 
the  judgment  will  protect  him  against  an  action  on  the  note, 
brought  by  a  subsequent  indorsee,  who  acquired  title  to  the  paper 
before  its  maturity,  and  without  any  knowledge  of  the  attach- 
ment.^ 

1  Scott  V.  Hill,  3  ^Missouri,  88. 

2  Quarles  v.  Porter,  12  Missouri,  76. 

3  Waldcn  v.  Valiant,  1.5  Missouri,  409. 

*  Quarles  v.  Porter,  12  Missouri,  76 ;  Colcord  v.  Daggett,  18  Ibid.  557. 

s  Funkhouser  v.  How,  24  Missouri,  44;  Dickey  v.  Fox,  Ibid.  217. 

®  Steuart  v.  West,  1  Hams  &  Jolinson,  536. 

7  Somer^-ille  v.  Brown,  5  Gill,  399.  In  Kieffer  r.  Ehler,  18  Penn.  State,  388,  the 
court  use  the  following  language,  which  is  strikingly  illustrative  of  the  fundamental 
en-or  of  the  Maryland  decision :  "  To  hold  that  an  attachment  prevents  a  subsequent 
bona  fide  indorsee  for  value  from  acquiring  a  good  title,  would  be  almost  a  destruction 
of  one  of  the  essential  characteristics  of  negotiable  paper.  It  would  be  a  great  injury 
to  persons  in  embarrassed  circumstances  holding  such  paper ;  for  no  one  could  buy  it 
[420] 


CHAP.  XXVIII.]  GARNISHEE   AS   PARTY   TO   A   NOTE.  §  592 

§  590.  In  concluding  this  review  of  the  reported  decisions  in 
this  country  on  this  important  subject,  it  is  proper  to  remark,  that 
in  none  of  the  States  where  the  attachment  of  negotiable  paper 
has  been  sustained,  are  the  statutory  provisions  as  to  the  general 
scope  and  effect  of  an  attachment,  more  comprehensive  than  in 
those  States  where  the  contrary  position  is  taken.  In  every  State 
the  defendant's  credits  may  be  attached ;  and  that  term  is,  as  to 
this  question,  fully  as  comprehensive,  as  if  the  statute  also  au- 
thorized —  as  is  frequently  the  case  —  the  attachment  of  riglds  or 
effects, 

§  591.  It  will  have  been  observed  that  some  of  the  courts  whose 
decisions  have  been  referred  to,  indicate  that  an  attachment  of 
negotiable  paper  will  prevail  against  one  who  acquires  title  after 
the  attachment,  tvith  notice  of  it.  If  notice  is  to  have  this  effect, 
an  important  question  arises  as  to  what  will  constitute  notice.  In 
Pennsylvania,  it  is  considered  that  the  doctrine  of  implied  notice 
by  lis  pendens  is  inapplicable  to  such  cases. ^  It  can  hardly  be 
doubted  that  the  only  safe  and  consistent  rule  is  that  the  notice 
must  be  actual. 

§  592.  When  one  is  garnished  who  holds  no  relation  of  debtor 
to  the  defendant,  except  as  having,  before  the  garnishment,  made 
a  negotiable  note  to  him,  he  should  carefully  avoid  in  his  answer 
any  admission  of  indebtedness ;  for  if,  in  disregard  of  the  rights 
which  may  have  been  already  acquired,  or  which  may  before  the 
maturity  of  the  note  be  acquired,  by  indorsees,  he  admit  a  debt, 
and  be  charged  in  respect  thereof,  his  payment  as  garnishee  will 
be  no  protection  to  him  against  an  action  on  the  note,  by  one  who 
acquires  the  same,  bond  fide,  before  its  maturity ;  except  in  Mary- 
land ;  and  tlierc,  only  until  the  true  principles  of  law  shall  have 
asserted  their  supremacy  over,  or  wise  legislation  shall  have  sup- 
planted, the  anomalous  and  dangerous  doctrine  there  established. ^ 

fiom  tliem  with  any  confidence  in  the  title.  Moreover,  it  would  present  the  strange 
result,  tliat  the  more  hands  such  paper  had  passed  through,  and  the  more  indorsers  there  were 
on  It,  the  less  it  would  be  worth  in  the  money  market;  for  it  would  be  subject  to  the  more 
risks  of  attachment." 

1  Kicffcr  V.  Ehler,  18  Penn.  State,  388. 

2  Ormond  v.  Moye,  11  Iredell,  564. 

[421] 


§  594  GARNISHEE'S  UABILITY  [CHAP.  XXIX. 


CHAPTER    XXIX. 

THE    garnishee's    LIABILITY,    AS    AFFECTED    BY    PRE-EXISTING     CON- 
TRACTS  WITH   THE   DEFENDANT,    OR   THIRD    PERSONS. 

§593.  Having  previously  considered^  the  liability  of  a  gar- 
nishee, in  respect  of  property  of  the  defendant  in  his  hands,  as 
affected  by  pre-existing  contracts  entered  into  by  him,  and  the 
principles  governing  the  two  cases  being  similar,  it  only  remains 
to  exhibit  here  such  cases  as  refer  particularly  to  and  illustrate 
the  case  of  an  indebtedness  of  the  garnishee  to  the  defendant. 

§  594.  It  is  an  unquestionable  doctrine  that  the  garnishment 
of  a  person  cannot  be  permitted  to  interfere  with  a  contract  en- 
tered into  between  liim  and  a  third  person,  with  reference  to  his 
indebtedness  to  the  defendant.  Thus,  where  A.  drew  a  bill  of 
exchange  on  B.  in  favor  of  C,  which  was  indorsed  by  C.  to  D., 
his  factor,  and  tli^n  accented  by  B.,  and  afterwards  B.  was  gar- 
nished in  a  suit  against  C. ;  it  was  held,  that  B.'s  acceptance  was 
an  express  contract  to  pay  D.,  the  factor,  and  that  B.  could  not, 
therefore,  be  held  as  garnishee  of  C7,  the  principal.^  So,  where 
A.  employed  B.,  at  an  annual  salary  of  $900,  and  a  short  time 
after  the  engagement  commenced,  B.  requested  that  his  salary 
might  be  paid,  as  it  accrued,  to  his  father,  to  whom  he  was  in- 
debted, and  A.,  with  the  approval  of  the  father,  agreed  so  to  do ; 
it  was  held,  that  A.  could  not  be  charged  as  garnishee  of  B.  Tlie 
court  said :  "  I'he  statement  shows  clearly  a  special  agreement 
between  A.  and  B.'s  father,  at  the  instigation  of  the  son,  to  pay 
the  father  the  wages  due  and  to  become  due  to  the  son.  Such  an 
agreement,  once  being  made,  it  was  not  in  the  power  of  the  son  to 
revoke  it  without  the  father'^onsent."  ^  So,  although  a  father  is 
in  law  entitled  to  the  earnings  of  a  minor  son,  he  may  transfer  to 
the  son  a  right  to  receive  them ;  and  where  such  a  contract  is  en- 
tered into  without  any  fraud,  for  the  advantage  of  the  son,  he  is 

1  Ante,  Ch.  XXIU. 

2  Van  Staphorst  v.  Pearce,  4  Mass.  258. 

8  Swisher  v.  Fitch,  1  Smedes  &  Marshall,  541 ;  White  v.  Eichardson,  12  New  Hamp. 
93  ;  Vincent  v.  Watson,  18  Penn.  State,  96. 
[422] 


Jus  -"^^tclL^h 
CHAP.  XXIX.]       AS  AFFECTED  BY   PREVIOUS   CONTRACTS.  §  594 

entitled  to  the  avails  of  liis  labor,  and  thej  cannot  be  attached  for 
his  father's  debt.  And  in  such  case,  if  the  father  knows  of  the 
son's  making  a  contract  for  his  services  on  his  own  account,  and 
makes  no  objection  to  it,  there  is  an  implied  assent  that  the  son 
shall  have  his  earnings.^  So,  where  the  defendant  was  indebted 
to  the  garnishees,  in  the  sum  of  82,000,  and  agreed  to  serve  them 
as  bookkeeper  for  a  year,  at  a  salary  of  $1,500,  payable  monthly  ; 
and  that  he  should  receive  in  money  only  enough  to  pay  the  neces- 
sary expenses  of  his  family,  and  the  remainder  of  his  salary  was 
to  be  applied  to  the  liquidation  of  his  debt ;  and  the  garnishees 
had  paid  him  $500,  which  was  a  reasonable  sum  for  his  family 
expenses  ;  it  was  held,  that  they  could  not  be  charged. ^  So,  where 
the  garnishee  had  become  bail  for  another,  on  condition  that  the 
latter  should  work  for  him,  and  the  wages  should  remain  in  the 
garnishee's  hands,  to  indemnify  him  for  his  liability ;  it  was  held, 
that  the  contract  could  not  be  interrupted  by  the  garnishment,  but 
should  be  sustained,  and  the  respective  rights  of  the  parties  pre- 
served under  it.^  So,  where  A.  was  indebted  to  B.,  and  B.  agreed 
to  receive  payment  thereof  in  shoemaker's  work  to  Ije  done  by  a 
firm  in  which  A.  was  a  ])artner ;  and  work  to  the  amount  of  the 
debt  was  done  by  the  firm  for  B. ;  and  thereafter  B.  was  summoned 
as  garnishee  of  A. ;  he  was  held  not  to  be  chargeable.^  So,  where 
a  railroad  company  was  summoned  as  garnishee  of  one  who  had 
contracted  to  do  certain  work  upon  the  road,  and  the  contract 
contained  a  stipulation  which  authorized  the  company,  if  it  saw 
fit,  to  see  that  the  laborers  employed  by  the  contractor  were  paid, 
and  to  withhold  from  him  an  amount  of  his  earnings  sufficient 
for  that  purpose,  and  to  use  it  in  paying  the  laborers ;  it  was 
held,  that  tlie  garnishment  of  the  company  could  not  have  the 
effect  of  setting  aside  this  contract,  and  that  the  company  had 
the  right  to  hold  whatever  was  due  the  coiitrailtor  until  the 
laborers  were  paid  by  him,  or  itself  apply  the  amount  to  such  pay- 
ment.^ So,  where  one  agreed  to  work  for  a  firm,  under  an  under- 
standing, assented  to  by  all  the  parties,  that  his  wages  should  be 
paid  by  applying  the  same  to  the  payment  of  the  rent  of  a  house 

1  Whiting  V.  Earle,  3  Pick.  201 ;  Manchester  v.  Smith,  12  Ibid.  113 ;  Bray  v.  Wheeler, 
29  Vermont,  .514. 

2  Hall  V.  Mapee,  27  Alabama,  414. 

8  White  V.  Richardson,  12  New  Hamp.  93. 

*  Russell  V.  Convers,  7  New  Hamp.  343. 

6  Taylor  V.  Burlington  &  M.  R.  R.  Co.,  5  Iowa,  114. 

[423] 


§  596  GARNISHEE'S  LIABILITY  [CHAP.  XXIX. 

occupied  by  him  as  a  tenant  of  one  of  the  firm ;  it  was  held,  that 
the  firm  were  exonerated  from  any  other  mode  of  payment,  and 
could  not  be  charged  as  his  garnishee  on  account  of  wages  earned 
by  him.^ 

§  595.   A  question  arises  here,  as  to  the  effefit  of  the  Ptahite  of 
Frauds  on  verb^l_contracts  entered  into  by  the  garnishee  with 
third  persons,  and  coming  within  the  terms  of  the  statute,  and 
which  he  sets  up  in  discharge  of  his  liability  to  the  defendant. 
In  Vermont,  it  has  been  decided  that  such  contracts  cannot  be  set 
\ip  by  the  garnishee,  so  as  to  defeat  the  recourse  of  the  attaching 
plaintiff  against  him.^    This  proceeds  upon  the  erroneous  idea, 
that  a  verbal  contract  coming  within  the  terms  of  the  statute  is 
absolutely  void;  but  the  better  view  doubtless  is  that  taken  by 
the  Supreme  Court  of  Massachusetts,  holding   the  contract  not 
absolutely  void  per  se,  but  that  no  action  can  be  maintained  on 
it,  if  the  party  sought  to  be  charged  plead  the  statute,  and  that 
the  privilege  of  pleading  it  is  a  personal  one,  au'd^may  be  waived, 
if   the   party  choose.      Therefore,  where   the   defendant   kept   a 
boarding-house   for   the   workmen   employed    in   the    garnishee's 
manufactory,  and  the  garnishee  became  indebted  to  the  defendant 
for  their  bpar.d  ;  but,  when  the  defendant  began  to  keep  the  house, 
it  was  verbally  agreed  between  the  defendant,  the  garnishee,  and 
several  third  persons,  who  subsequently  furnjslied  her  with  pro- 
visions and  other  supplies,  that  the  supplies  should  be  delivered 
and  charged  to  the  defendant,  and  that  at  the  end  of  each  quarter, 
the  garnishee  would  see  that  the   persons  who  furnished  them 
were" paid  ;  the  court  held,  that  whatever  the  garnishee  was  liable 
for  on  this  ^guaranty,  must  go  to  discharge  his  debt  to  the  defend- 
ant, and  that  the  garnishee,  though  his  undertaking  was  within 
the  statute,  was  not  Jx)und,  against  his  own  choice,  to  set  up  that 
statute  in  order  to  avoid  his  promise.^ 

§  596.  But  where  a  garnishee  relies  on  a  contract  with  a  third 
person,  as  affecting  his  liability  to  the  defendant,  it  must  appear 
that  such  third  person  stood  in  such  position  as  to  have  ajsgal 
right  to  enter  into  the  contract,  and  that  it  was  entered  into  with 
the  defendant's  assent ;  otherwise  it  will  be  unavailing.     Thus, 

1  Mason  v.  Ambler,  6  Allen,  124. 

2  Hazeltine  v.  Page,  4  Vermont,  49 ;  Strong  v.  Mitchell,  19  Ibid.  644. 

3  Cahill  V.  Bigelow,  18  Pick.  369  ;  Swett  v.  Ordway,  23  Ibid.  266. 

[424] 


CHAP.  XXIX.]   AS  AFFECTED  BY  PEE\10US  CONTRACTS.        §  597 

where  A.  disclosed,  as  garnishee,  that  he  had  executed  a  note  to 
B.,  the  defendant,  which  was  transferred  by  B.  to  C,  as  collateral 
security  for  a  debt  due  to  C,  and,  before  the  garnishment,  A. 
paid  C.  a  part  of  the  note,  and  C.  thereupon,  withou^B.'s  knowl- 
edge, released  him  from  any  further  claim  upoiHt ;  it  was  held, 
that  C.  had  no  legal  right  to  discharge  A^  from  liability  for  the 
balance,  without  B/T assent,  and  A.  was  accordingly  charged  as 
garnishee  in  respect  thereof.^ 

§  597.  Wliere  the  garnishee  is  indebted,  it  will  not  vary  his 
liability,  that  his  contract  with  the  defendant  is  to  pay  the  money 
in  another  ^tate  or  country  than  that  in  which  the  attachmeiit  is 
pending.  Tlius,  where  it  was  urged  as  a  ground  for  discharging 
a  garnishee,  that  his  debt  to  the  defendant  was  contracted  in 
England,  and  was  payable  there  only,  so  that  the  defendant  could 
not°  and  therefore  the  plaintiff  could  not,  make  it  payable  else- 
where, the  court  said  :  "  We  do  not  perceive  any  legal  principle 
upon  which  the  objection  rests.  This  was  a  debt  from  the  gar- 
nishee everywhere,  in  whatever  country  his  person  or  property 
might  be  found.  A  suit  might  have  been  maintained  by  the 
defendant Jie re,  and  therefore  the  debt  may  be  attached  here."  ^ 
So,  where  the  debt  was  contracted  where  the  garnishment  took 
place,  but  the  garnishee  agreed  to  pay  the  money  in  another 
State,  he  was  nevertheless  charged  ;  the  court  referring  to  the  case 
just  cited  as  sustaining  their  decision.^ 

1  Wipgin  V-  I^ewis,  19  N.  Hamp.  548.  »  Sturtevant  v.  Robinson  18  Pick.  175. 

2  Blake  v.  WUliams,  6  Pick.  286. 

[425] 


§  599  FRAUDULENT  ATTEMPTS.         [CHAP.  XXX. 


CHAPTER  XXX. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  A  FRAUDULENT  AT- 
TEMPT BY  THE  DEFENDANT  TO  DEFEAT  THE  PAYMENT  OF  HIS 
DEBTS. 

§  598.  Cases  liavo  arisen,  in  which  a  person  indebted  has 
sought  to  prevent  his  efiects  from  being  reached  for  the  payment 
of  his  debts,  by  selling  property,  and  taking  promissory  notes 
therefor  payable  to  tliird  persons,  in  the  expectatioil  that  such 
notes  could  not  be  reached  by  garnislnncnt.  All  such  attempts, 
being  in  fraud  of  just  creditors,  have  been  entirely  discounte- 
nanced wherever  they  have  been  made,  and,  if  the  circumstances 
permitted,  without  violating  established  legal  principles,  have  beeu 
defeated. 

§  599.  Thus,  in  Vermont,  it  appeared  from  the  answer  of  the 
garnishee  that  he  had  been  indebted  to  the  defendant ;  tliat  the 
defendant  said  to  him  he  was  afraid  his  creditors  would  attach 
the  debt,  and  desired  the  garnishee  to  give  notes  payable  to  a 
third  person,  which  was  done,  without  the  concurrence  or  knowl- 
edge of  the  third  person.  The  court  said  :  "  "We  could  not  feel 
justified  to  allow  so  obvious  a  subterfuge  to  interpose  any  obstacle 
in  the  way  of  this  process.  If  the  person  to  whom  the  note  is 
payable  sis  now  the  bona  fide  holder  of  this  note^  and  received  it  in 
the  due  course  of  business,  while  it  was  still  current,  the  interest 
thus  acquired  cannot  be  defeated  by  this  process,  although  pend- 
ing at  the  time  the  holder  acquired  a  title  to  it.  But  if  the 
holder  took  the  note  when  overdue,  he  took  it  subject  to  all  the 
defences'  which  existed  while  the  note  was  in  the  hands  of  the 
defendant.  Among  such  defences  may  be  reckoned  attachment 
l)y  this  process."  ^  So,  in  New  Hampshire,  where  A.  sold  property 
to  B.,  and  unr^egotiable  notes  therefor  were  executed  to  C,  a 
resident  in  another  State,  who  was  unknown  to  B. ;  and  A.,  at 
the  time  of  selling  the  property  and  taking  the  notes,  said  he  was 
owing  some  debts  that  he  never  meant  to  pay,  and  some  that  he 

1  Camp  V.  Clark,  14  Vermont,  387.     See  Bibb  v.  Smith,  1  Dana,  580 ;  Marsh  v. 
Davis,  24  Vermont,  363. 
[426] 


CHAP  XXX.]  FRAUDULENT  ATTEMPTS.  §  601 

would  i)ay  when  he  was  ready  ;  the  court  held  the  transaction 
fraudulent  as  to  A.'s  creditors,  and  charged  B.  as  hisgarnishee.^ 
So,  in  Connecticut,  where  A.,  with  a  view  to  keep  his  property 
out  of  the  reach  of  his  creditors,  and  in  pursuance  of  a  combina- 
tion with  B.  for  that  purpose,  sold  goods  belonging  to  him  as  the 
property  of  B.,  and  took  from  the  vendee  a  negotiable  note, 
payable  to  B.  at  a  future  day,  which  B.  assigned,  before  it  became 
due,  to  C,  who  was  acquainted  with  the  transaction  ;  it  was  held, 
that  the  vendee  was  the  debtor  of  A.,  and  was  therefore  liable  as 
his  garnishee.^ 

§  GOO.  In  Massachusetts  this  case  arose.  A.  collected  in  New 
Yoi-k,  a  sum  of  money  for  B.,  in  Boston,  and  had  it,  on  his 
return  to  the  latter  place,  in  a  thousand-dollar  bill.  Seeing  B., 
he  informed  him  that  he  had  the  money  in  that  shape,  and  would 
then  have  paid  B.  the  amount  due  him,  if  the  bill  could  have 
been  changed.  As  that  could  not  then  be  done,  B.  requested  A. 
to  give  him  his  negotiable  note  for  the  amount  due  him ;  in 
respect  of  which,  by  the  law  of  Massachusetts,  A.  could  not  be 
charged  as  garnishee  of  B.  The  note  was  given,  and  immediately 
afterward  A.  was  garnished.  Facts  in  the  case  tended  to  show 
that  the  note  jvas  given  for  the  purpose  of  preventing  the  amount 
collected  by  A.  from  being  reached  by  the  creditors  of  B.  by 
garnishment ;  and  it  was,  therefore,  contended  that  A.  was  still 
the  debtor  of  B.,  and  therefore  liable  ;  but  the  court  held  the 
note  to  be  a  payment  pro  tanto^  and  that  the  garnishee  was  not 
chargeable.^  . 

§  001.  In  all  cases  where  one  indebted -to  another  gives  an  obli- 
gation to  pay  the  debt  to  a  third  person,  it  may  be  considered  as 
a  sound  rule,  that,  in  order  to  make  such  obligation  effectual  to 
defeat  an  attachment  of  the  debt  as  due  to  the  original  creditor,  it 
must  be  shown  that  the  obligation  to  the  third  person  was  bond  fide 
and  upon  adequate  consideration.*  ~ 

1  Green  v.  Doughty,  6  New  Hamp.  572. 

2  Enos  V.  Tuttle,  3  Conn.  27.     See  Price  v.  Bradford,  4  Louisiana,  35. 
»  Wood  V.  Bodwell,  12  Tick.  268. 

*  Langley  v.  Berry,  14  New  Hamp.  81 

[427] 


§  602  GARNISHEE'S   LIABILITY   AS   AFFECTED  [CIIAP.  XXXL 


CHAPTER    XXXI. 

THE  garnishee's  LIABILITY,  AS   AFFECTED   BY  AN   EQUITABLE   ASSIGN- 
MENT  OP  THE   DEBT. 

§  602.  We  have  previously  seen  ^  that  an  equitable  assignment 
of  personal  property  of  a  defendant  in  the  hands  of  a  garnishee, 
will  relieve  tlie  latter  from  liability  as  garnishee  on  account  of 
such  property.  We  come  now  to  the  application  of  the  same 
principle  to  a  debt  due  from  the  garnishee  to  the  defendant. 
When  it  is  sought  to  reach  by  garnishment  a  credit  of  the  de 
fcndant,  it  must  be  both  le^lly  and  equitably  due  him.  There- 
fore, a  debt  due  to  one  as  a  trustee  for  another,  cannot  be  attached 
in  an  action  against  the  trustee,  because  though  legally  due  him, 
it  is  not  his  property,  but  another's.  Thus,  a  note  having  been 
placed  in  the  hands  of  an  attorney  at  law  for  collection,  he  ex- 
tended the  time  of  payment,  and  took  a  new  obligation  in  his  own 
name.  A  creditor  of  the  attorney  sought  to  subject  the  debt 
secured  by  this  obligation  to  the  payment  of  a  debt  due  him  from 
the  attorney.  The  evidence  showed  that  the  latter  did  not  take 
the  obligation  in  his  own  right,  or  for  his  own  benefit ;  and  it 
was  held,  that  the  attachment  could  not  be  sustained.^     So,  where 

A.  undertook  to  furnish  B.  certain  locks,  and  did  furnish  them 
to  a  certain  amount.  Afterwards  B.  was  summoned  as  garnishee 
of  A.,  and  after  the  garnishment  he  received  notice  that  A.  was 
doing  business  merely  as  the  agent  of  another :  it  was  held,  that 

B.  was  not  chargeable  as  garnishee  of  A.^ 

So,  where  one  was  summoned  as  garnishee  of  J.  S.,  and  an- 
swered that  he  had  executed  a  note  to  J.  S.,  and  given  a  mort- 
gage to  secure  its  payment ;  but  that  he  received  the  consideration 
thereof  from  S.  H.  S,,  the  father  of  J.  S,,  and  always  paid  the 
interest  thereon  to  him ;  and  that  he  had  never  known  J.  S.,  or 
transacted  any  business  with  him  ;  and  it  appeared  in  evidence 
that  the  note  was,  at  the  death  of  S.  H.  S.,  found  by  his  executors 

1  Ante,  Ch.  XXIV.  8  Xaley  v.  Abbot,  14  New  Hamp.  359. 

2  Eodgers  v.  Hendsley,  2  Louisiana,  597. 

[428] 


CHAP.  XXXI.]  BY  AN   ASSIGNMENT   OF   THE  DEBT.  §  603 

among  his  papers,  and  was  scheduled  by  S.  H.  S.  as  a  part  of  his 
assets  :  and  that  S.  H.  S.  was  in  the  habit  of  lending  money  on 
notes  and  mortgages,  taking  the  securities  in  the  names  of  his 
different  relatives  ;  that  he  never  surrendered  his  right  to  them 
when  hTl=ctained  possession  of  the  papers,  but  considered  them 
as  his  own  property,  and  such  was  the  case  with  the  note  in 
question  ;  that  the  note  never  was  in  the  possession  of  J.  S., 
nor  did  he  ever  make  any  claim  to  it;  but,  on  the  contrary, 
S.  H.  S.,  when  it  was  given,  told  the  maker  that  he  would 
always  find  it  in  his  possession  :  it  was  held,  that  the  note  did 
not  belong  to  J.  S.,  and  that,  therefore,  the  garnishee  could  not 
be  charged.^ 

The  same  principle  is  applicable  to  all  cases  of  equitable  assign- 
ments of  debts  ;  where  the  defendant  may  be  legally  entitled  to 
collect  the  debt,  but  not  for  his  own  benefit. 

§  603.  The  doctrine  which  establishes  the  assignability  in  equity 
of  clio^es  in  action^  arises  from  the  public  utility  of  increasing  the 
quantity  of  transferable  property,  in  aid  of  commerce  and  of 
private  credit.^  It  is  a  well-known  rule  of  the  common  law, 
that  no  possibility,  right,  title,  or  thing  in  action,  can  be  granted 
to  third  persons.  Hence,  a  debt,  or  other  chose  in  action^  could 
not  be  transferred  by  assignment,  except  in  case  of  the  king ;  to 
whom  and  by  whom  at  the  common  law  an  assignment  of  a 
cliosse  in  action  could .  always  bo  made  ;  for  the  policy  of  the  rule 
was  not  supposed  to  apply  to  the  king.  So  strictly  was  this 
doctrine  construed,  that  it  was  even  doubted  whether  an  annuity 
was  assignable,  although  assigns  were  mentioned  in  the  deed 
creating  it.  And  at  law,  with  the  exception  of  negotiable  instru- 
ments and  some  few  other  securities,  this  still  continues  to  be  the 
general  rule,  unless  the  debtor  assents  to  the  transfer  ;  but  if  he 
does  assent,  then  the  right  of  the  assignee  is  complete  at  law,  so 
that  he  may  maintain  a  direct  action  against  the  debtor,  upon 
the  implied  promise  to  pay  him  the  same,  which  results  from 
such  assent.  But  courts  of  equity  have  long  since  totally  disre- 
garded this  nicety.  They  accordingly  give  effect  to  assignments 
of  choses  in  action.  Every  such  assignment  is  considered  in  equity 
as  in  its  nature  amounting  to  a  declaration  of  trust,  and  to  an 
agreement  to  permit  the  assignee  to  make  use  of  the  name  of 

1  Leland  v.  Sabin,  7  Foster,  74.  ^  pix  r.  Cobb,  4  Mass.  508. 

[4291 


§  605  GARNISHEE'S   LIABILITY   AS   AFFECTED  [cHAP.  XXXI. 

tlie  assignor,  in  order  to  recover  the  debt,  or  to  reduce  the  property 
into  possession.^ 

§  G04.  Hence  where  it  appears  that  a  debt  due  from  tlie  gar- 
nislicc  to  the  defendant  liad  been  equitably  assigned  bcljjre  the 
garnisluncnt,  the  court  will  take  cognizance  of  the  assignment 
and  proTect  the  rights  of  the  assignee.  For,  as  the  defendant 
has  parted  with  his  interest  in  the  debt,  and  can  no  h)ngor  main- 
tain an  action  for  it  against  the  garnishee,  for  his  own  benefit ; 
and  as  the  plaintiff  can  acquire  no  greater  interest  in  the  debt 
than  the  defendant  had  at  the  (inie  of  the  garnishment  ;  it  results 
that  the  garnishee  cannot  be  charged  for  that  which,  etpiitably, 
he  has  ceased  to  owe  to  the  defendant,  and  owes  to  another 
j)erson. 

The  extent  to  which  courts  will  protect  the  rights  of  parties 
under  equitable  assignments,  is  illustrated  by  the  following  case : 
A.  made  a  contract  with  I>.  in  relation  to  some  wool,  the  elTect  of 
which  was,  that  A.  still  retained  an  interest  in  the  same,  during 
the  process  of  manufacturing  it.  B.  agreed  to  effect  an  insurance 
on  the  wool  for  the  benefit  of  A.,  and  procured  a  policy  in  his  own 
name  in  pursuance  of  that  agreement,  and  for  that  object.  After 
the  making  of  the  policy,  and  before  a  loss  under  it,  B.  informed 
A.  that  he  had  effected  an  insurance  for  A.'s  benefit,  pursuant  to 
the  previous  stipulation.  Afterward  the  wool  was  destroyed  by 
fire,  and  the  insurance  company  was  summoned  as  garnishee  of 
B. ;  and  A.  became  a  party  to  the  suit  claiming  the  insurance 
money,  under  his  arrangement  with  B.  It  was  held,  that  A.  had 
an  cquitalilc  interest  in  the  policy,  equivalent  to  that  of  an  assignee 
of  a  clio8e  in  action,  and  sufficient  to  enable  him  to  hold  the  avails 
of  the  same  as  against  the  attaching  creditor.^ 

§  605.  As  a  general  rule,  personal  property  has,  in  contempla- 
tion of  law,  no  locality  or  situs,  but  is  deemed  to  follow  the  person 
of  the  owner.  Hence  it  results,  that  a  voluntary  transfer  or  alien- 
ation is  governed  by  the  law  of  the  place  of  his  domicile.    It  is  also 

1  2  Story's  Eqnity,  §  1039,  1040. 

2  Providence  County  Bank  v.  Benson,  24  Pick.  204.  See  Green  v.  Gillctt,  n  Day, 
485;  Lamkin  v.  Phillips,  9  Porter,  98;  Hodson  v.  McConnell,  12  Illinois,  170;  Galena 
&  Chicairo  U.  R.  R.  Co.  i'.  Menzies,  26  Ibid.  121 ;  Carr  v.  Wau;,'h,  28  Ibid.  418 ;  Whit- 
ten  r.  Little,  Georj^na  Decisions,  Part  II.  99 ;  Forepaugh  v.  Appold,  1 7  B.  Monroe,  625  ; 
Patten  i-.  Wilson,  34  Penn.  State,  299. 

[430] 


CHAP.  XXXI.]  BY   AN   ASSIGNMENT   OF   THE  DEBT.  §  607 

a  general  principle,  sanctioned  and  acted  on  in  all  civilized  coun- 
tries, that  the  laws  of  one  country  will,  by  what  is  termed  the 
comity  of  nations,  be  recognized  and  executed  in  another,  where 
the  rights  of  individuals  are  concerned.  Therefore  the  law  of  the 
place  where  a  personal  coi^ract  is  made,  is  to  govern  in  deciding 
upon  its  validity  oFTnvalidity ;  and  a  conveyance  of  personal 
property  wlilcli  is  valid  l»y  that  law,  is  equally  effectual  elsewhere. 
These  principles  apply~to  debts  and  other  choses  in  action,  as  well 
as  to  any  other  species  of  personal  property.  While  the  rule  that 
the  law  of  one  nation  will  be  carried  into  effect  in  the  territories 
of  another,  is  subject  to  some  exceptions,  yet  as  a  general  rule  it 
is  established,  and  has  an  application  to  the  subject  now  under 
discussion,  in  connection  with  an  assignment  of  a  debt  in  one 
State,  in  such  a  manner  as  to  be  effectual  by  the  laws  of  that 
State,  but  which  is  wanting  in  some  particular  to  make  it  so  in 
another  State,  where  the  debtor  resides.  In  such  case  the  assign- 
ment will  be  sustained  as  against  an  attaching  creditor,  residing 
in  the  State  where  the  assignment  was  made  ;  ^  and  also  against 
one  residing  in  the  State  where  the  debt,  or  chose  in  action,  is.^ 

§  006. '  In  order,  however,  that  the  rights  of  the  assignee  should 
be  fully  protected,  it  is  important  that  he  immediately  notify  the 
debtor  of  the  assignment.  Though  tlie  assignment,  as  between 
the  parties  to  it,  is  coni[)lote  and  effectual  from  tlie  moment  it  is 
made,  and  the  assignor,  if  he  afterward  rece]ve^j)ayment  of  the 
debt,  will  be  obliged  to  pay  the  amount  to  the  assignee,  yet  the 
debtor  is  under  no  obligation  to  pay  the  assi^ee  until  he  receive 
notice  of  the  assignment.  After  that,  a  payment  to  the  assignor 
will  be  at  the  debtor's  peril. 

§  607.  Hence,  if  a  debtor  be  summoned  as  garnishee  of  his 
creditor,  and  have  received  np  notice  of  an  assigjiment  of  his 
debt,  a  judgment  rendered  against  him  will  protgct  him  from  sub- 
sequent liability  to  an  assignee.^  If  he  have  received  information 
of  an  assignment,  it  is  his  duty,  in  answering,  to  state  that  fact, 

I  Van  Buskirk  i-.  Hartford  Fire  Ins.  Co.,  14  Conn.  ."iS-l ;  Burlock  i-.  Taylor,  16  Pick, 
33.5;  Whipjile  v.  Thavcr,  Il)i<l.  '2.i ;  Daniels  v.  Willard,  Ibid.  36;  Martin  v.  Potter,  11 
Grav,  37  ;  Noble  v.  Smith,  6  Rhode  Island,  446  ;   Russell  v.  Tunno,  11  Richardson,  303. 

-  Houston  V.  Nowland,  7  Gill  &  Johnson,  480;  Wilson  v.  Carson,  12  Maryland,  54; 
MowTcy  r.  Crocker,  6  Wisconsin,  326. 

8  Tudor  V.  Perkins,  3  Day,  364  ;  Richards  v.  Grif^gs,  16  Missouri,  416  ;  Clodfelter  r 
Cox   1  Sneed,  330:  McCoid  i-.  Beattv,  12  Iowa,  299 ;  Dodd  v.  Brott,  1  Minnesota,  270, 

[431] 


§  G08  GARMSHEE'S  LIABILITY   AS   AFFECTED  [CHAP.  XXXL 

SO  as  to  giiard  the  rights  of  the  assignee ;  but  more  espuciully  his 
own :  for  iTTie  fiiil  to  do  so,  and  judgment  go  against  him  as  a 
debtor  of  the  assignor,  it  will  afTord  him  no  protection  against  a 
suit  by,  and  a  second  payment  to,  the  assignee.*  .  The  particular 
shape  in  which  this  information  may  have  been  received  is  of  no 
consequence,  provided  it  be  shown  to  have  been  derived  from  the 
assignee  or  his  a^nt.^     And  it  is  no  part  of  the  garnishee's  duty 
(except^  perhaps,  m  those  New  England  States  where  facts  stated 
in  the  garnishee's  answer  are  regarded,  only  so  far  as  he  may  de- 
clare his  belief  of  their  truth)  to  ascertain  the  truth^or  falsity  of 
the  information,  before  he  determines  whether  he  will  s^e  it  in 
his  answer.     True  or  false,  it  should  be  stated  in  every  case, 
whether  the  answer  is  in  itself  conclusive,  or  may  be  controverted 
and  disproved.    For  if  the  answer  be  conclusive,  and  tlic  garnishee 
fails  to  state  the  information  ho  has  received,  because  he  may  not 
believe  it  to  be  true,  he  assumes  all  the  responsibility  of  the  cor- 
rectness of  his  belief,  not  only  as  to  the  facts  within  his  knowledge, 
but  as  to  other  facts,  of  the  existence  of  which  he  may  be  ignorant, 
and  which  might  show  his  information  to  be  true.     And  if  the 
answer  be  not  in  itself  conclusive,  but  may  be  controverted  and 
disproved,  he  should  not  prejudge  the  case,  and  decide  that  the 
information  is  untrue ;  but  should  leave  the  plaintiff  to  deny,  and 
the  court  to  adjudicate  its  truth.^ 

§  CM.    An  assignment  of  a  debt  will  protect  the  rights  of  the 
assignee   from   a   subsequent    attachment    against   the   assignor 
though  no  notice  may  have  been  given  to  the  debtor  before  the 
attachment,  if  it  be  given  in  time  to  enabje  him  to  Uike  advantage 
of  it  before  judgment  against  him  as  ^aruishee.*     And  it  is  his 

1  Ntifrentr.  Opdvkc,  9  Robinson  (La.),  453;  Crayton  r.  Clark,  11  Alahania,  787; 
Foster  V.  White,  9  Porter,  221  ;  Colvin  v.  Rich,  3  Ibid.  175  ;  Lamkin  v.  Phillips,  9  Ibid. 
98  ;  Pitts  V.  Mower,  18  Maine,  361  ;  Bunker  v.  Gilmorc,  40  Ibid.  88;  Walters  i.-.  Wash- 
ington Ins.  Co.,  1  Iowa,  404;  Prcscott  v.  Hull,  17  Johns.  284;  Kimbrough  v.  Davis, 
34  Alabama,  583 ;  Page  v.  Thompson,  43  New  Ilamp.  373. 

'■i  Bank  of  St.  Mary  v.  Morton,  12  Robinson  (La.),  409. 

8  Foster  ?•.  Walker,  2  Alabama,  177  ;  Wricks  v.  Braneh  Bank,  12  Ibid.  594. 

*  Dix  V.  Cobb,  4  Mass.  508;  Stevens  v.  Stevens,  1  Ashmead,  190;  Pcllman  v.  Hart, 
1  Pcnn.  State,  263  ;  Crayton  ?•.  Clark,  11  Alabama,  787  ;  Smith  v.  Sterritt,  24  Missouri, 
260;  Walters' 1-.  Washington  Ins.  Co.,  1  Iowa,  404;  Muir  r.  Schenck,  3  Hill  (N.  Y.), 
228.'  That  the  doctrine  stated  in  the  text  is  correct,  cannot,  I  think,  be  reasonably 
doubted ;  but  in  Connecticut  and  Vermont,  it  is  held,  that  an  attachment  of  a  debt, 
made  before  notice  of  its  assignment,  will  prevail  against  the  assignment,  though  notice 
be  given  to  the  debtor  before  judgment  against  him  as  garnishee.  Judah  v.  Judd,  5 
[432] 


CHAP.  XXXl]  BY   AN  ASSIGNMENT   OF   THE  DEBT.  §  610 

duty,  at  any  time  before  such  judgment,  to  makesuck  notice 
known  to  the  court ;  failing  in  which,  tlie  judgment  will  avail  him 
nothing  as  a  defence  against  an  action  by  an  assignee  of  the  debt.^ 

§  609.  An  assignment  of  a  debt  is  usually  made  in  writing,  but 
this  formality  is  not  necessary  where  the  debt  is  evidenced  by  a 
writing ;  a  delivery  of  which  to  the  assignee,  for  a  valuable  con- 
sideration, will  operate  an  assignment,  so  far  as  to  enable  him  to 
maintain  an  action  upon  it  in  the  name  of  the  assignor.?^  Wher- 
ever, therefore,  a  writing  given  by  a  garnishee  to  the  defendant, 
has  been  hona  fide  transferred  by  delivery  to  a  tbird  person,  the 
garnishee  cannot  be  charged.  Thus,  where  the  evidence  of  the 
garnislicL''s  indebtedness  consisted  of  a  certificate  of  a  certain 
amount  of  lumber  cut  for  him  l)y  tiie  defendant,  with  a  statement 
of  what  was  to  be  paid  for  it,  attested  by  third  persons,  and  before 
the  garnishment  this  certificate  was  assigned  by  delivery ;  the 
court  held  the  assignment  good,  and  discharged  the  garnishee.^ 
So  where  a  lessor  delivered  to  his  creditor  a  lease,  on  which  rent 
was  due,  to  enable. him  to  receive  the  same  in  part  payment  of  the 
lessor's  del)t  to  him,  and  the  lessee  knew  of  the  delivery  for  that 
purpose,  and  agrc<»d  to  account  to  the  creditor  for  the  rent  due; 
it  was  held  a  good  eijuitable  assignment  of  the  rent  as  against  an 
attaching  creditor  of  the  lessor.* 

§  610.  It  is,  however,  impracticable  thus  to  transfer  by  delivery 
a  book  accDunt  or  other  debt,  not  evidenced  by  writing.  As  a 
symbolical  delivery  of  personal  property,  so  situated  that  an  actual 
delivery  of  it  could  not  be  made,  has  been  regarded  as  sufficient 
so  the  assignee  of  a  judgment,  or  of  a  book  debt,  may,  upon  the 
same  pniicijde,  be  enabled  to  establish  his  rights  without  proof  of 
an  actual  delivery.  For  a  delivery  of  a  transcript  of  them  would 
not  prove  a  delivery  of  the  debt  or  judgment.  It  would  only  prove 
the  delivery  of  something  indicative  of  their  existence  and  of  the 
intention  of  the  parties.  Other  evidence,  showing  that  tlie  transfer 
had  l)cen  completed,  would  be  sufficient.^     In  all  sucii  cases  the 

Day,  5.34  ;  Bi>hop  v.  ITolcoinbc,  10  Conn.  444;  Van  Buskirk  v.  Hartford  F.  I.  Co.,  14 
Ibid.  141  ;  Ward  v.  Morrison,  25  Vermont,  593. 

1  Crayton  v.  Clark,  11  Alabama,  787. 

2  Kin-  V.  Murphy,  1  Stewart,  228 ;  Bayley  on  Bills,  2d  Am.  Ed.  102. 

8  Littleliild  r.  Smith,  17  Maine,  327;  Hardy  r.  Colby,  42  Ibid.  381 ;   Byars  v.  Grif- 
fin, 31  Mississippi,  603. 
*  Dennis  i;.  Twichell,  10  Mctcalf,  180.  ^  Porter  v.  Bullard,  26  Maine,  448. 

28  [433] 


§  GIO  GARNISHEE'S   LIABILITY   AS   AFFECTED  [CHAP.  XXXI 

assignment  should,  for  greater  certainty,  be  written  ;  llioiigli,  as 
we  sluill  presently  sce,^  a  verbal  assignment,  if  assented  to  by  the 
debtor,  will  suffice. 

An  assignment  of  a  chose  in  actloyi,  or  of  a  fund,  need  not  be  by 
any  particular  form  of  words,  or  particular  form  of  instrument. 
Any  bindnig  appropriation  of  it  to  a  particular  use,  by  any  writing 
whatever,  is  an  assignment,  or  what  is  the  same,  a  transfer  of  the 
ownership.     Thus,  a  power  of  attorney  to  collect  moneys  and  pay 
them   over  to  certain   named  parties,  was  held,  as  soon  as  the 
moneys  were  collected,  to  be  in   effect  au  assignment.^     So,  a 
power  of  attorney,  irrevocable,  authorizing  the  attorney  to  collect 
a  sum  of  jnoncy,  to  his  own  use,  is  a  constructive  assignmeut  of 
the  money  to  him.^     So,  a  power  of  attorney  to  receive  all  the 
money  due  from  A.  to  the  constituent,  and  to  give  a  discharge 
therefor  in  the  constituent's  name,  with  a  clause  stating  that  tiiis 
"  is  an  assignment  of  the  same,"  constitutes  au  assignment  of  the 
debt  to  the  attorney,  though  the  power  is  not  in  terms  irrevocable, 
and  does  not  expressly  authorize  the  attorney  to  receive  the  money 
to  his  own  use.*     So,  where  a  garnishee  disclosed  indebtedness  to 
the  defendant,  but  stated  that  the  defendant  had  drawn  an  order 
on  him  to  pay  the  balance  of  his  account  to  a  third  person  ;  and 
it  was  objected  that  this  was  no  assignment,  because  it  did  not 
purport  to  be  for  value  received,  and  because  it  did  not  appear  but 
that  the  drawee  named  in  the  order  was  the  servant  of  the  de- 
fendant, to  receive  the  money  for  the  defendant's  use  ;  it  was  held, 
that  there  was  a  primd  facie  assignment,  and  that  the  words  value 
received  were  not  necessary .^     So,  where  A.  was  indebted  to  B.  on 
a  book  account,  and  B.  drew  out  a  bill  of  the  items,  and  wrote  at 
the  bottom  a  request  to  A.  to  pay  the  amount  to  C. ;  and  notice 
of  the  assignment  was  given  to  A. ;  and  afterwards  A.  was  gar- 
nished in  a  suit  against  B.,  and  was  charged  as  garnishee  and  paid 
the  money ;  and  suit  was  then  brought  in  B.'s  name,  for  the  use 
of  C,  to  recover  the  money ;  it  was  held,  that  the  order,  being 
drawn  for  the  whole  amount  due,  was  an  assignment  of  the  debt, 
and  that  A.  was  bound  to  know  that  an  assignment  was  intended.^ 

.^       1  Post,  §  614. 

2  Watson  V.  Bagaley,  12  Penn.  State,  164. 
8  Gerrish  v.  Sweetser,  4  Pick.  374. 

*  "Weed  I'.  Jewett,  2  Metcalf,  608.     See  People  v.  Tioga  C.  P.,  19  Wendell,  73. 
6  Adams  v.  Robinson,  1  Pick.  461.     See  Johnson  v.  Thayer,  17  Maine,  401. 
6  Bobbins  v.  Bacon,  3  Maine,  346. 
[434] 


CHAP.  XXXI.]  BY   AN   ASSIGX^IENT   OF   THE  DEBT.  §  612 

§  Gil.  It  is  not,  however,  every  order  which  may  be  drawn  on 
a  party  ha\ing  moneys  of,  or  indebted  to,  the  drawer,  which  wiir 
operate  an  assignment  of  the  money  or  debt.  A  bill  of  exchange, 
for  instance,  is  not  an  assignment  of  the  fund  on  which  it  is  drawn, 
or  any  part  thereof,  until  accepted  by  the  drawee.^  If,  however, 
an  order  be  drawn  for  the  ivhole  of  a  designated  fund  in  the  hands 
of  the  drawee,  it  is  an  assignment,  whether  accepted  by  the  latter 
or  not ;  ^  but  it  is  well  settled  that  where  an  order  is  drawn  on 
either  a  general  or  particular  fund,  for  a  part  only,  it  does  not 
amount  to  an  assignment  of  that  part,  unless  the  drawee  consent 
to  the  appropriation  by  an  acceptance  of  the  draft ;  or  an  obliga- 
tion to  accept  may  be  fairly  imijlied  from  the  custom  of  trade,  or 
the  course  of  business  between  the  parties,  as  a  part  of  their  con- 
tnict.3  Therefore,  where  A.,  under  an  attachment  against  B., 
summoned  a  bank  as  garnishee,  which,  at  the  time,  had  money 
of  B.  on  deposit,  and  after  the  garnishment.  A.,  B.,  and  the 
cashier  of  the  bank  being  together  at  a  place  distant  from  the 
bank,  B.  drew  a  check  on  the  bank  for  a  certain  sum,  and  de- 
livered it  to  A.,  in  payment  of  his  debt  to  A.,  and  A.  receipted  for 
it  and  signed  an  order  to  dismiss  his  attachment  upon  the  amount 
of  the  check  being  transferred  to  his  credit  on  the  books  of  the 
bank,  and  delivered  the  check  to  the  cashier  for  the  purpose  of 
having  the  transfer  made  when  he  should  return  to  the  bank; 
and,  before  his  return,  other  creditors  of  B.  had  garnished  the 
bank ;  but,  notwithstanding,  the  cashier  charged  the  check  to  B.'s 
account  and  carried  the  same  amount  to  the  credit  of  A.  ;  it  was 
held,  that  the  check  was  no  assignment  of  any  part  of  B.'s  money 
in  the  bank  until  it  was  presented  and  paid,  and  that  the  subse- 
quent attachcrs  were  entitled  to  the  money,  notwithstanding  the 
entries  made  on  the  books  of  the  bank.* 

§  612.  It  is  not  necessary  that  the  debt  assigned  should  be  due 
at  the  time  of  the  assignment,  in  order  to  protect  the  rights  of 

1  Mandcville  v.  'Welch,  5  Wheaton,  277  ;  Co\v])crthwaite  v.  Sheffield,  1  Sandford, 
Sup.  Ct.  416  ;  B.  c.  3  Comstock,  243  ;  Sands  v.  Matthews,  27  Alabama,  399  ;  Luff  v. 
Tope,  5  Hill  (N.  Y.),  413;  9.  c.  7  Ibid.  577  ;  Winter  i-.  Drury,  1  Selden,  523;  Kimball 
V.  Donald,  20  Missouri,  577  ;  "Wilson  v.  Carson,  12  Maryland,  54. 

2  McMenomy  i-.  Ferrers,  3  Johns.  71 ;  Miller  v.  Hubbard,  4  Cranch,  C.  C.  451 ;  Ma- 
comber  V.  Doane,  2  Allen,  541. 

»  Poydras  r.  Delaware,  13  Louisiana,  98;  Mandeville  v.  "Welch,  5  "Wheaton,  277; 
Cowperthwaite  v.  Sheffield,  1  Sandford,  Sup.  Ct.  416  ;  s.  c.  3  Comstock,  243  ;  Gibson  r. 
Cooke,  20  Pick.  15  ;  Tripp  v.  Brownell,  12  Cu>liing,  376. 

*  Bullard  V  U.mdall,  1  Gray,  605. 

[.13o] 


§  613  GARNISITEE'S   LIARILITV   AS   AFFECTED  [CIIAP.  XXXI. 

the  assignee  from  an  attachment  against  the  assignor.  A  debt 
afterwards  to  accrue  may  be  efTectually  assigned.  Thus,  where 
A.  was  employed  as  a  laborer  by  B.,  and,  being  indebted  to  C, 
executed  a  power  of  attorney  authorizing  C.  to  receive  and  receipt 
for  all  sums  of  money  then  due  or  thereafter  to  become  due  to 
him,  and  stating  that  the  power  was  an  assignment  of  the  money  ; 
and  B.  agreed  to  pay  A.'s  wages  to  C. ;  it  was  decided  that  the 
assignment  was  valid,  and  that  B.  could  not  be  held  as  garnishee 
of  A.^  So,  where  A.  was  employed  as  an  assessor  of  the  city  of 
Mobile,  and  before  the  service  required  of  him  in  that  capacity 
had  been  performed,  he  drew  an  order  on  the  corporation  in  favor 
of  B.  for  the  agreed  compensation  for  his  services,  which  was 
accepted  by  the  mayor  of  the  city ;  it  was  decided  that  the  assign- 
ment of  the  debt  was  complete,  and  that  the  corporation  could  not 
be  held  as  garnishee  of  A.^ 

§  do.  But  while  it  is  true  that  a  debt  to  become  afterwards 
due  may  be  assigned,  it  is  necessary  that,  at  the  date  of  the 
assignment,  the  contract  out  of  which  the  deltt  is  to  grow  should 
have  some  existence.  A  mere  possibility  of  future  indebtedness, 
witliout  any  subsisting  engagement  upon  which  it  shall  accrue, 
cannot  be  assigned.  The  debt  may  be  conditional,  uncertain  as 
to  amount,  or  contingent ;  but  to  be  the  subject  of  an  assignment, 
there  must  be  an  actual  or  possible  debt,  due  or  to  become  due. 
Therefore  where  A.  executed  a  paper  in  July,  purporting  to 
transfer  to  B.  "  all  claims  and  demands  which  A.  now  has  or 
which  he  may  have  against  C,  on  the  first  day  of  January  next, 
for  all  sums  of  money  due  and  to  become  due  to  A.  for  services 
in  laying  common  sewers"  ;  with  a  power  of  attorney  irrevocable 
to  receive  the  same ;  and  it  was  altogether  uncertain  whether  C. 
would  afterwards  employ  A.  at  all,  and  the  existence  of  any  debt 
from  him  to  A.  after  the  date  of  the  assignment  depended  wholly 
on  A.'s  being  so  employed  ;  it  was  decided,  that  the  transfer  to  B., 
as  against  a  subsequent  attaching  creditor,  carried  only  what  was 
due  at  its  date,  and  did  not  reach  anything  becoming  due  to  A. 
afterwards,  from  subsequent  employment.^ 

1  Weed  V.  Jewett,  2  Metcalf,  608  ;  Emery  v.  Lawrence,  8  Gushing,  151  ;  Hartley  v. 
Tapley,  2  Gray,  565  ;  Taylor  r.  Lynch,  5  Ibid.  49  ;  Lannan  v.  Smith,  7  Ibid.  150.  See 
Cahill  V.  Bigelow,  18  Pick.  369  ;  Van  Staphorst  v.  Pearce,  4  Mass.  2^3. 

2  Payne  v.  Mobile,  4  Alabama,  333.     See  Tucker  v.  Marsteller,  1  Cranch,  C.  C.  254 
8  Miilhall  V.  Quinn,  1  Gray,  105. 

[43fi] 


CHAP.  XXXI.]  BY   AX   ASSIGNilEXT   OF   THE   DEBT.  §  615 

§  014.'  When  a  debt  is  not  evidenced  by  a  writing,  it  may  be 
assigned  verbally,  if  the  debtor  assent.     Where  such  assent  is 
give°i,  the  assignment  is  complete,  and  the  debtor  is  bound  to 
pay  to  the  assignee,  and  consequently  cannot  be  charged  as  gar- 
nishee of  the  assignor.  ♦   Thus  where  the  answer  of  a  garnishee 
admitted  that  he  had  been  indebted  to  the  defendant,  but  stated 
that  before  he  was  garnished  there  was  a  verbal  agreement  be- 
tween him  and  the  defendant  and  a  creditor  of  the  defendant, 
that  the  debt  should  be  paid  to  the  creditor ;  the  answer  was  held 
to  be  evidence  in  the  garnishee's  favor  to  show  that  he  was  not 
indebted  to  the  defendant.      This  was   in   effect   giving   to   the 
arrangement  the  character  and  force  of  an  equitable  assignment 
of  the  del>t ;  otherwise  the  answer  was  inadmissible  as  evidence 
to  the  purport  stated.^     So,  where  A.  &  B.  were  partners,  and 
upon  a  dissolution  of  the  firm,  A.  was  found  indebted  to  B.,  and 
B.  requested  him  to  pay  the  amount  to  C,  his  creditor,  who  was 
present,  and  A.  replied  that  it  was  immaterial  to  him  to  whom 
he  paid  the  money  ;  it  was  held  to  be  a  transfer  of  the  debt,  so  as 
to  prevent  A.  from  being  charged  as  garnishee  of  B.^     So,  if  by 
agreement  between  both  the  partners  and  a  debtor  of  the  firm, 
the  debt  of  the  latter  is  to  be  paid  to  one  of  the  partners  after  a 
dissolution  of  the  firm,  the  debtor  may  be  held  as  garnishee  of 
him  t(j  whom  it  is  so  to  be  paid.* 

§  615.  In  any  case  of  the  transfer  of  evidences  of  debt,  where 
the  assignee  undertakes  to  assert  title  through  such  tVansfer,  the 
good  faith  of  the  transaction  may,  of  course,  be  the  subject  of 
inquiry,  and  must  i)e  shown,  if  sulhcient  evidence  be  presented 
to  cast  suspicion  upon  it.  The  assignee  will,  in  such  case,  be 
entitled,  in  the  first  instance,  to  the  benefit  of  all  presumptions 
in  his  favor,  but  those  presumptions  may  be  overthrown  by  proof, 
as  in  any  other  transaction.  If  the  assignment  be  direct  from  the 
debtor  to  him,  and  made  without  consideration  or  with  a  fraudulent 
intent,  known  to  the  a.ssignee,  he  cannot  avail  himself  of  it  to  defeat 
an  attachment.  And  the  infirmity  of  the  transaction  will  affect  the 
title  of  a  subsequent  purchaser,  having  knowledge  of  the  fraudu- 
lent character  of  the  original  assignment.     But  no  such  result  will 

1  Black  V.  Paul,  10  Missouri.  lO.T  ;  Porter  v.  Bullard,  26  Maine,  448  ;  Curie  r.  St.  Louis 
Per.Ktual  Ins.  Co.,  12  Missouri, 378  ;  Rudd  i-.  Paine,  2  Cranch,  C.  C.  9  ;  Newl.y  /•.  H.ll,  2 
Metcalfe  (Kv.),  530 ;  Xoves  r.  Brown,  33  Vermont,  4.31  ;  Ilutehins  v.  Watts,  3.t  l!.id.  36a 

2  Tx)vely  'v.  Caldwell,  4  Alabama,  684.        "  MarUa  i-.  Kirksey,  23  Geor-ia  If-i. 

[4^7] 


§  G15  a  GARNISHEE'S   LIABILITY.  —  ASSIGNMENT.         [ciIAI'.  XXXL 

ensue,  where  tlio  subsequent  purchaser  has  not  such  knowledge. 
He  may  know  tliat  the  debtor  transferred  the  paper  without  con- 
sideration, but  that  will  not  prevent  his  acquiring,  for  value,  a 
complete  title ;  for  such  transfer  is  not  necessarily  fraudulent  i^cr 
se;  and  the  purchaser  is  not  bound  to  inquire  into  the  solvency  of 
the  assignor,  or  into  the  circumstances  which  might  give  a  fraud- 
ulent aspect  to  the  transaction.  Thus,  where  A.,  who  was  insol- 
vent, transferred  to  B.,  as  a  gift,  a  check  on  a  bank,  and  R.,  for 
value,  sold  the  check  to  C,  who  knew  that  B.'s  title  was  that  of  a 
donee,  without  consideration,  but  had  no  knowledge  that  the  gift 
was  in  fraud  of  A.'s  creditors  ;  it  was  held,  that  C.'s  title  was  valid 
and  effectual  against  an  attachment,  under  which  the  drawer  of 
the  check  was  summoned  as  garnishee  of  A.^ 

§  615  a.  All  the  views  expressed  in  this  chaptei'  will  have  been 
seen  to  refer  to  cases  of  assignments  of  debts  made  before  the 
garnisliment  of  the  debtor.  No  assignment  made  after  that  event 
can  have  any  effect  to  deprive  the  attachment  plaintiff  of  his 
recourse  against  the  garnishee.^ 

1  Fulwciler  v.  Hughes,  17  Pcnn.  State,  440.  From  the  opinion  of  the  court,  we 
present  the  following  extract :  "  From  all  other  j)ropert_v  euniniereial  paper  is  distin- 
guished by  the  fact  that  it  carries  on  its  face  all  the  evidences  of  title  which  persons 
dealing  in  it  are  charged  with  notice  of.  Hence  a  j)arty  may,  with  perfect  safety,  pur- 
chase a  negotiable  instrument,  if  it  is  all  fair  upon  its  face,  uuless  he  has  actual  notice 
of  a  defect  in  the  holder's  title,  or  it  is  oti'ercd  under  susi)icious  circumstances.  Hence, 
also,  notice  that  the  instrument  is  a  mere  accommodation  or  gift,  does  not  prevent  ii 
purchaser  for  value  from  taking  a  good  title ;  for  the  giving  of  the  paper  is  a  declara- 
tion of  intention  that  it  may  be  put  into  free  circulation  for  the  benefit  of  the  payee ; 
and  therefore  one  may,  with  a  good  conscience,  buy  it  and  claim  upon  it,  even  though 
he  knows  its  character.  A  contrary  doctrine  would  involve  the  duty  on  the  ])nrt  of  the 
accommodation  payee  to  inform  the  purchaser  of  the  character  of  the  instrument,  and 
this  would  then  defeat  the  very  object  for  which  it  was  given. 

"  From  these  remarks  it  is  apparent  that  a  donee  of  negotiable  paper  does  not  stand 
upon  the  same  mle  as  a  purchaser  from  the  donee  with  knowledge  of  the  gift ;  for  the 
latter  may  recover,  though  the  former  could  not  have  done  so.  Notice  that  it  is  a  gift 
is  not  notice  that  payment  is  not  intended,  and  one  may  purchase  bond  Jide  under 
the  former  notice,  when  he  could  not  under  the  latter.  The  donee  has  a  good  title, 
though  a  revocable  one,  and  he  can  pass  a  good  title  to  any  one  not  notified  of  the 
revocation. 

"  These  principles  are  plain,  and  rule  the  question  under  consideration.  The  check 
was  a  gift  to  B.,  and  by  the  gift  he  acquired  a  good  title  as  against  the  donor,  but  rev- 
ocable by  the  donor's  creditors.  The  purchaser  knew  of  the  gift,  but  he  did  not  know 
of  the  revocation,  or  of  the  facts  whichamountcd  to  a  revocation,  for  he  knew  notliing 
of  the  donor's  insolvency,  and  the  donee  was  also  ignorant  of  it.  One  could  sell  and 
the  other  could  purchase  the  check  in  good  faith  ;  and  the  subsequent  notice  of  insol- 
vency and  reclamation  by  the  creditors,  does  not  affect  the  purchaser's  conscience, 
or  make  it  mala  Jidcs  in.  him  to  hold  on  to  what  he  has  honestly  and  innocently 
pvirchased." 

2  Stevens  v.  Pugh,  12  Iowa,  430. 

[438] 


CHAP.  XXXII.]  LEGAL   PROCEEDINGS.  §  619 


CHAPTER    XXXII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  THE  COMMENCEMENT, 
PENDENCY,  AND  COMPLETION  OF  LEGAL  PROCEEDINGS  AGAINST  HIM, 
BY   THE   DEFENDANT,  FOR   THE   RECOVERY   OP   THE   DEBT. 

§  616.  It  frequently  happens  that  when  a  garnishee  is  sum- 
moned, a  suit  is  pending  against  him  on  the  part  of  the  defend- 
ant, or  that  the  defendant  has  obtained  a  judgment  Against  him 
for  the  debt  in  respect  of  which  he  is  garnished.  Numerous  cases 
of  this  description  have  received  adjudication,  and  the  decisions 
are  by  no  means  consentaneous.  We  will  consider,  I.  the  effect 
of  the  pendency  of  a  suit  by  the  defendant  against  the  garnishee ; 
and,  II.  the  question  whether  a  judgment  debtor  can  be  held  as 
garnishee  of  the  judgment  plaintiff. 

§  617.  I.  The  Effect  of  the  Pendency  of  a  Suit  hj  the  Defetidant 
againd  the  Garnishee.  It  is  an  invariable  and  indispensable  prin- 
ciple, that  a  garnishee  shall  not  be  made  to  pay  his  debt  twice. 
Consequently  when  he  is  in  sucli  a  situation  that,  if  charged  as 
garnishee,  he  cannot  defend  himself  against  a  second  payment  to 
his  creditor,  he  should  not  be  charged.  This  principle  has  been 
applied,  as  we  shall  presently  see,  to  cases  where  legal  proceedings 
were  pending  against  Uie  garnishee  on  behalf  of  the  defendant. 

§  618.  A  case  is  reported  as  ha^-ing  been  decided  in  Massachu- 
setts, in  1780,  taking  the  broad  ground  that  a  garnishee  cannot  be 
charged  on  account  of  a  debt,  for  the  recovery  of  which  an  action, 
previously  commenced  by  the  defendant,  is  pending  at  the  time  of 
the  garnishment.  This  was  under  the  old  provincial  trustee  act 
of  32  Geo.  2 ;  ^  but  it  was  overruled  in  1828,  under  the  then  ex- 
isting statute!^  In  New  Hampshire,  likewise,  the  same  ground 
was  at  one  time  assumed,^  but  afterwards  abandoned.* 

§  619.   There  came  before  the  Supreme  Court  of  the  United 
States,  a  case  which  might  seem  to  favor  the  view  first  entertained 

1  firidlcv  V  Harraden,  U  Mass.  496.         ^  Burnham  v.  Folsom,  5  New  Harap.  566. 
\  5horn^ie"  SeWoif.  6  Pick.  120.        *  Foster  v.  Dudley,  10  Foster  463. 

[439] 


§  010  LEGAL   PROCEKDIXCS  [ciIAl'.  XXXIL 

in  Massachusetts  and  New  Ilamjjsliiro,  but  it  is  essentially  diiroreut. 
A.  sued  B,  in  the  District  Court  oi'  the  United  States  for  Alabama. 
After  the  action  was  brought,  B.  was  summoned  as  garnishee  of  A., 
in  a  county  court  of  Alabama,  and  judgment  was  there  rendered 
against  him.  He  then  pleaded  the  judgment  in  bar  of  the  action 
pending  in  the  United  States  Court,  and  the  court,  on  demurrer, 
held  the  plea  bad.  The  Supreme  Court  on  this  point  say  :  "  The 
plea  shows  that  tlie  proceedings  on  the  attachment  were  instituted 
after  the  connncncemeiit  of  this  suit.  The  jurisdiction  of  the 
District  Court  of  the  United  States,  and  the  right  of  the  jilaintilT 
to  prosecut9  his  suit  in  that  court,  having  attached,  that  right 
could  not  be  arrested  or  taken  away  by  any  proceedings  in  anotlier 
court.  This  would  produce  a  collision  in  the  jurisdiction  of  courts, 
that  would  extremely  embarrass  the  administration  of  justice." 

Tlie  court,  however,  expressly  recognize  the  doctrine  that  if  the 
garnishment  had  taken  place  before  the  action  was  brought,  it 
would  have  been  sufficient  in  abatement,  or  bur,  as  the  case  might 
be.  They  say :  "  If  the  attachment  had  been  conducted  to  a  con- 
clusion, and  the  money  recovered  of  the  defendant  before  the 
commencement  of  the  present  suit,  there  can  bo  no  doubt  that  it 
might  have  been  set  up  as  a  payment  upon  the  note  in  question. 
And  if  the  defendant  would  have  been  protected  jwro  tanto^  under 
a  recovery  had  by  virtue  of  the  attachment,  and  could  have  pleaded 
such  recovery,  in  bar,  the  same  principle  would  support  a  plea  in 
abatement,  of  an  attachment  pending  prior  to  the  commencement 
of  the  present  suit.  The  attachment  of  the  debt,  in  such  ease,  iu 
the  liands  of  the  defendant,  would  fix  it  tlierc  in  favor  of  the  at- 
taching creditor,  and  the  defendant  could  not  afterwards  pay  it 
over  to  the  plaintitT.  The  attaching  creditor  would,  in  such  case, 
acquire  a  lien  upon  the  debt,  binding  upon  the  defendant,  and 
which  the  courts  of  all  other  governments,  if  they  recognize  such 
proceedings  at  all,  could  not  fail  to  regard.  If  this  doctrine  be 
well  founded,  the  priority  of  suit  will  determine  the  right.  The 
rule  must  be  reciprocal ;  and  where  the  suit  in  one  court  is  com- 
menced prior  to  the  proceedings  under  attachment  in  anothei 
court,  such  proceedhigs  cannot  arrest  the  suit ;  and  the  maxim 
qui  prior  est  tempore,  potior  est  jure,  must  govern  the  case."  ^ 

The  difference  between  this  case  and  those  first  decided  in  New 

1  AVallacc  v.  M'Connel,  13  refers,  136.     See  Bingham  v.  Smith,  5  Ahibama,  651 , 
Greenwood  v.  Rector,  Hempstead,  708 ;  Wood  i'.  Lake,  13  "Wisconsin,  84. 
[440] 


CHAP.  XXXII.]         BY   DEFENDANT   AGAINST   GARNISHEE.  §  620 

Hampshire  and  Massachusetts,  lies  in  the  two  proceedings  in 
Alabama  taking  place  in  different  jurisdictions ;  and  the  whole 
decision  of  the  Supreme  Court  of  the  United  States  was  based  on 
the  conflict  of  jurisdiction,  which  would  grow  out  of  a  practice 
such  as  that  passed  upon  by  that  tribunal. 

§  620.  In  ^fassachusetts,  the  liability  of  a  garnishee  where  an 
action  on  behalf  of  the  defendant  is  pending  against  him,  turns 
upon  the  state  of  the  pleadings  in  the  action  at  the  time  of  the 
garnishment.  If  tlic  pleadings  are  in  such  state  that  the  garnishee 
can  })lead  the  garnishment  in  bar  of  the  action,  he  can  be  charged; 
otherwise  not.^  Hence,  in  tl»e  first  reported  case  of  the  kind  in 
that  State,  where  the  garnishee  had  been  sued  by  the  defendant, 
and,  before  the  garnishment,  the  action  had  been  referred  by  rule 
of  court,  in  which  rule  it  was  agreed  that  judgment  should  be  en- 
tered up  according  to  the  report  of  the  referees,  and  execution 
issued  thereon  ;  it  was  determined  that  the  garnishee  could  not  be 
charged,  because  in  this  state  of  the  action  no  day  for  })leading 
remained  for  tlie  garnishee,  and  the  law  furnislied  him  no  defence 
against  the  defendant's  demand  of  judgment.^  The  same  rule 
was  enforced  in  a  case  of  similar  facts,  where  the  garnisliment 
took  place  after  the  award  of  the  referees,  but  before  judgment 
rendered  thereon.^ 

In  anotluM'  case,  where,  after  issue  joined,  the  defendant  was 
summoned  as  garnishee  of  the  plaintilf,  and  after  verdict  for  the 
plaintilf,  tlie  defendant  moved  in  arrest  of  judgment,  on  the  ground 
of  the  garnishment,  the  same  court  held,  that  the  motion  could 
not  prevail,  and  that  the  garnishment  was  void,  because  made  after 
issue  joined,  when  the  garnisliee  could  not  defend  himself  against 
a  recovery  in  the  action,  by  the  trial  of  any  issue  in  fact  or  in  law, 
on  any  plea  which  he  had  opportunity  to  plead.'* 

Where,  however,  the  defendant  in  a  pending  action  was  gar- 
nished, and,  before  the  action  was  brought  to  a  judgment,  he  was 
charged  as  garnishee,  and  paid  the  amount  recovered  against  him 
as  such,  it  was  held  to  be  a  good  bar  to  the  action.^ 

And  where  the  garnishee  is,  at  the  time  of  the  garnishment, 
indebted  to  the  defendant,  a  payment  by  him  of  a  judgment  sub- 

1  Thorndikc  v.  DeWolf.  6  Pick.  120.  *  Kidd  v.  Shepherd,  4  Mass.  238. 

2  Howell  V.  Freeman,  3  Mass.  121.  '  Foster  v.  Jones,  15  Mass.  185. 
«  M'CaflFrey  i;.  Moore.  18  Pick.  492. 

[441] 


§  020  LEGAL   rROCEEDIXGS  [cHAP.  XXXIL 

seqiiently  recovered,  will  not  discharge  him.  Thus,  where  A.  was 
summoned  as  guniislicc  of  B.,  pending  a  suit  against  him  by  B., 
and  it  was  agreed  between  A.  and  the  plaintiff  in  attachment,  that 
the  garnishment  proceedings  should  bo  continued  until  the  suit 
of  B.  against  A.  should  bo  determined ;  and  B.  afterward  obtained 
judgment  against  A.,  who  appealed  therefrom,  and  gave  bund  to 
abide  the  decision  of  the  appellate  court ;  and  A.  then  answered 
as  garnishee,  denying  that  he  was  liable  on  the  contract  on  which 
B.  had  obtained  a  judgment,  and  referring  to  his  appeal  from  the 
judgment ;  and,  at  a  subsequent  time  further  answered,  that  ho 
had  settled  the  appeal,  by  paying  the  amount  of  the  judgment 
appealed  from ;  it  was  held,  that  A.  was  liable  as  garnishee 
of  B.  The  court  fully  recognized  the  principles  they  had  pre- 
viously laid  down,  in  regard  to  summoning  a  person  as  garuisheo 
pending  an  action  against  him  ;  but  held,  that  the  garnishee, 
by  his  mistake  of  the  nature  of  his  defence  against  B.'s  demand, 
or  by  his  inattention,  had  placed  himself  beyond  the  protection  of 
those  principles.^ 

In  Maine,  the  mere  fact  of  issue  being  joined,  is  considered  to 
have  no  effect  in  exempting  the  garnishee  from  liability.^ 

In  Vermont  and  New  Hampshire,  on  the  other  hand,  the  courts 
seem  disposed  to  adopt  tlie  Massachusetts  rule,  so  far  as  to  dis- 
charge the  garnishee,  where  the  condition  of  the  action  against 
him  is  such  that  he  cannot  plead  the  garnishment  in  bar  thereof.^ 
Hence,  where  the  garnishee  disclosed  that  the  defendant  had 
commenced  a  suit  in  chancery  against  him,  which,  before  the 
garnishment,  had  been  set  down  for  trial,  and  between  the  time 
of  the  garnishment  and  that  of  filing  the  garnishee's  answer,  had 
been  heard  by  the  chancellor,  and  continued  for  his  decision  ;  the 
court  decided  that  the  garnishee  could  not  be  charged,  because 
the  proceedings  in  the  chancery  court  could  not  be  arrested,  or  its 
decree  anticipated,  and  the  garnishee,  if  charged,  might  be  com- 
pelled to  pay  the  demand  a  second  time.* 

1  Locke  V.  Tippets,  7  Mass.  149. 

2  Smith  i\  Barker,  10  Maine,  4r)8. 

8  Trombly  v.  Clark,  13  Vermont,  118;  Foster  v.  Dndlcy,  10  Foster,  463. 

*  "Wadsworth  i-.  Clark,  14  Vermont,  139.  In  Spicer  i'.  Spicer,  23  Vermont,  678,  it 
\vas  held,  that  when  a  defendant,  in  a  suit  pending,  is  sirmmoned  as  garnishee  of  the 
plaintiff,  and  is  charged  for  the  full  amount  of  the  plaintiff's  claim  against  him,  and 
the  judgment  charging  him  remains  unsatisfied  ;  judgment  should  he  rendered  for  the 
plaintiff  for  the  amount  of  his  claim,  but  that  the  court  will  order  execution  stayed, 
nntil  the  plaintiff  shall  cause  the  defendant  to  be  released  from  the  garnishment. 
[442] 


CHAP.  XXXI I.]         RY   DEFENDANT   AGAINST   GARNISHEE.  §  622 

111  Pennsylvania,  the  pendency  of  an  action  by  the  defendant 
against  the  garnishee,  at  the  time  of  the  garnishment,  will  not 
prevent  the  garnishee's  liability.  The  conrt  there,  acting  upon 
probably  the  first  case  in  this  country  in  which  this  question 
was  involved,  reject  the  English  doctrine,  that  a  debt  in  suit 
cannot  be  attached,  as  inapplicable  to  the  state  of  things  here. 
The  doctrine  in  England  grows  out  of  the  fact  that  garnishment 
there  is  the  offspring  of  special  and  local  custom,  and  takes  place 
in  inferior  courts  ;  and  the  courts  of  general  jurisdiction  will  not 
permit  suits  depending  before  them  to  be  affected  by  the  process 
of  inferior  tribunals  exercising  a  jurisdiction  of  the  kind  belonging 
to  the  courts  of  the  sheriff"  and  lord  mayor  of  L(jndon.^  In 
Tennessee,  the  same  view  is  taken  as  in  Pennsylvania  ;  -  and  so  in 
Alabama,  where  the  suit  and  the  garnishment  are  in  the  same 
court  ;  ^  but  not  wliere  they  are  in  diU'erent  courts  ;  at  least  when 
the  debt  is  controverted.* 

§  621.  We  may  state,  then,  as  the  result  of  these  decisions,  1. 
That  the  pendency,  in  the  same  court,  of  an  action  on  behalf  of 
the  defendant  against  the  garnishee,  will  not  preclude  the  gar- 
nishee's being  charged  ;  2.  That  wiiere  the  action  is  pending  in 
one  court  and  the  garnishment  in  anotlier,  and  the  courts  are 
of  dilTerent  jurisdictions,  that  wiiich  was  first  instituted  will  be 
sustained  ;  and,  o.  That  when  the  action  is  in  such  a  situation 
that  the  garnishee,  if  charged,  cannot  avail  himself  of  the  judg- 
ment in  attachment  as  a  bar  to  a  recovery  in  the  action,  he  cannot 
be  held  as  garnishee. 

§  622.  II.  Can  a  Judgmait  Debtor  he  held  as  Garnishee  of  the 
Judgment  Creditor  ?  On  this  point  the  authorities  differ.  Wliere, 
as  in  New  Hampshire,  a  person  against  whom  suit  has  been 
brought  cannot  l)e  charged  as  garnishee ;  and  where,  as  in  Massa- 
chusetts and  Vermont,  the  garnishee  in  such  case  cannot  be  made 
liable,  if  the  pending  action  be  in  such  situation  that  the  garnish- 
ment cannot  be  pleaded  therein  ;  and  where  tlie  judgment  is  in 
one  court  and  the  garnishment  in  another  ;  it  might  be  expected 

1  M'Carty  r.  Einlen,  2  Dallas,  277 ;  8.  c.  2  Yeates,  190 ;  Crabb  i-.  Jones,  2  Miles, 
130;  Sweeny  i'.  Allen,  1  Penn.  State,  380. 
-  llniXv.  Slilb,  7  Yer-er,  42. 

*  Ilitt  r.  Lacy,  3  Alabama,  104. 

*  Linj^haiu  i'.  Smith,  5  Alabama,  651. 

[443] 


§  623  LEGAL   PROCEEDINGS  [CIIAP.  XXXIL 

to  1)0  decided  tliat  the  judgment  debtor  could  not  be  charged  as 
garnishee  of  tlic  judgment  creditor. 

Ill  New  Hampsliiro  and  Vermont,  the  question  has  not  directly 
come  up,  tliough  in  the  latter  State  the  court,  on  one  occasion, 
used  language  wliich  might  bo  construed  to  authorize  the  garnish- 
ment of  a  judgment  debtor.  They  say  :  "  The  statute  makes  all 
the  goods,  chattels,  rights,  or  credits  of  the  defendant  in  the 
hands  of  tlic  trustee  liable  for  tlie  debts  of  the  defendant.  Ilonce, 
if  tlie  trustee  is  indebted  to  the  defendant,  he  is  lial)le  to  be  sum- 
moned as  trustee  without  regard  to  the  nature  of  the  indebtedness, 
whether  by  record,  specialty,  or  simj)le  contract.  No  exception 
is  made  whetlier  a  suit  is  depending  in  favor  of  the  defendant,  or 
whetlier  payable  or  not."  ^ 

In  Massachusetts,  it  was  held,  that  one  against  whom  an  exe- 
cution on  a  judgment  was  in  the  hands  of  a  sheriff,  could  not  be 
held  as  garnishee  of  the  plaintilT  therein  ;2  and  that  a  judgment 
debtor,  against  whom  an  execution  miglit  issue,  could  not  be 
so  cliarged.8  Justice  Story,  'in  a  case  which  came  liefore  the 
Circuit  Court  of  the  United  States  in  Rhode  Island,  held  the 
same  ground  ;  *  as  did  the  Supreme  Court  of  New  Jersey,*^  and 
that  of  Arkansas.^  And  in  Tennessee,  it  was  decided  tliat  a 
judgment  debtor  in  a  court  of  record,  could  not  be  subjected  to 
garnishment  in  a  proceeding  before  a  justice  of  the  peace." 

§  G23.  On  the  otlier  side  we  find  the  courts  of  Connecticut, 
Pennsylvania,  Delaware,  Alabama,  Mississippi,  Indiana,  and  Illi- 
nois. In  the  first^named  State,  the  court  thus  announced  its 
views :  "  By  the  custom  of  London,  from  which  our  foreign  a^ 
tachment  system  was  principally  derived,  it  is  said,  that  a  judg- 
ment debt  cannot  be  attached  ;  and  the  same  has  been  holden  by 
the  courts  in  Massachusetts.  A  fair,  and,  as  we  think,  very  ob- 
vious construction  of  our  statute  on  this  subject,  as  well  as  the 
general  policy  of  our  attachment  laws,  leads  us  to  a  different  con- 
clusion. It  is  enacted  that '  where  debts  are  due  from  any  person 
to  an  absent  and  absconding  debtor,  it  shall  be  lawful  for  any 

1  Trombly  v.  Clark,  13  Vermont,  118.  «  Sharp  v.  Clark,  2  Mass.  91, 

8  Prescott  V.  Parker,  4  Mass.  170. 

*  Franklin  v.  "Ward,  3  Mason,  136. 

*  Shinn  v.  Zimmerman,  3  Zabriskie,  150. 

6  Trowbridge  v.  Means,  5  Arkansas,  135  ;  Tunstall  v.  Means,  Ibid.  700. 
T  Clodfelter  r.  Cox,  1  Saeed,  330. 
[444] 


CHAP.  XXXII.]         BY  DEFENDANT   AGAINST   GARNISHEE.  §  624 

creditor  to  bring  his  action  against  such  absent  and  absconding 
debtor,'  ttc. ;  and  that '  any  debt  due  from  such  debtor  to  the  de- 
fendant sliall  be  secured  to  pay  such  judgment  as  the  phiintiff  shall 
recover.'  The  provisions  of  this  statute  were  extended,  in  1830, 
to  the  attachment  of  debts  due  to  such  persons  as  should  be  dis- 
charged from  imprisonment.  The  language  of  this  statute  clearly 
embraces  judgment  debts  as  well  as  others ;  and  the  reason  and 
equity  of  it  are  equally  extensive.  A  judgment  debt  is  liquidated 
and  certain  ;  and,  in  ordinary  cases,  little  opportunity  or  necessity 
remains  for  controversy  respecting  its  existence,  character,  or 
amount.  The  policy  of  our  laws  has  ever  required,  that  all  the 
property  of  a  debtor  not  exempted  by  law  from  execution,  should 
be  subject  to  the  demands  of  his  creditors ;  and  that  every  facility, 
consistent  with  the  rea.sonable  immunities  of  debtors,  should  be 
afforded  to  sulyect  such  property  to  legal  process. 

"  It  is  true,  as  has  been  contended,  that  to  subject  judgment 
deV»ts  to  attachment,  and  especially  those  upon  which  execution? 
have  issued,  may,  in  some  cases,  produce  inconvenience  and  em 
barrassment  to  debtors,  as  well  as  to  creditors.  Such  consequences 
have  resulted  from  the  operation  of  our  foreign  attachment  system, 
in  ordinary  cases ;  and  this  was  foreseen  and  has  been  knowu  to 
our  le<'-i>lators,  by  whom  this  system  has  been  introduced,  con- 
tinued, and  extended ;  but  the  general  interest  of  the  conmuinity 
in  this  re.^pect  has  l)ecn  considered  as  paramount  to  the  possible 
and  occasional  inconveniences  to  which  individuals  may  be  some- 
times subjected.  A  judgment  debtor,  in  such  cases,  is  not  without 
relief:  he  may  resort,  whenever  serious  danger  or  loss  is  appre- 
hended, either  to  his  writ  of  audita  querela,  or  to  the  powers  of  a 
court  of  cbancery  for  appropriate  relief."  ^ 

§  (324.  Tbe  same  views,  substantially,  influenced  the  courts  of 
Pennsylvania,^  Delaware,^  Alabama,*  Mississippi,^  Indiana,^  and 
Illinois,'  to  tlie  same  conclusion ;  and  while  there  is  much  force 
in  the  contrary  reasons,  it  is  difficult  to  lay  aside  the  demands  of 

« 

1  Gager  v.  Watson,  11  Conn.  168. 

i  Crahb  r.  .Jont-s,  2  Miles,  130  ;  Sweeny  v.  AUen,  1  Penn.  State,  380 ;  Fithian  r.  New 
York  &  Eric  R.  R.  Co.,  31  Ibid.  1 14. 
»  Btkhor  I-.  Grubb.  4  IIarrin},'ton,  461. 
♦  t5 kipper  c.  Foster,  29  Alabama,  330. 

s  Gray  r.  Ilcnby,  1  Smedes  &  Marshall,  598;  O'Brien  v.  LiddcU,  10  Ibid.  371. 
«  liali.ert  r.  Stinson,  6  IJInckfurd,  398. 

^  iliuurd  f.  Lawlcr,  26  Illinois,  301.  ^.  ..-, 

|44o  I 


§  626  LEGAL   PROCEEDINGS  [CHAP.  XXXIL 

public  policy,  in  favor  of  sulijectiiig  all  of  a  debtor's  effects, — 
save  such  as  arc  by  law  expressly  exempted,  —  to  the  payment 
of  his  debts.  A  striking  illustration  of  the  disadvantage  of  ex- 
empting judgment  debts  from  attachment,  would  be  in  a  case,  by 
no  means  improbable,  of  a  debtor  having  no  visible  property,  and 
no  debts  due  liim  but  judgment  debts,  but  enough  of  such  debts 
to  pay  his  own  liabilities.  Upon  what  principle  of  right  or  justice, 
under  such  circumstances,  ought  his  creditors  to  be  denied  access 
by  this  process  to  the  debts  thus  due  him  ?  Is  the  temporary 
inconvenience  to  which  his  debtors  might  be  exposed  sufficient  to 
outweigh  all  the  considerations  in  favor  of  subjecting  thorn  to  the 
payment  of  debts,  without  the  payment  of  which  a  fraud  may  bo 
perpetrated  in  defiance  of  law  ? 

§  025.  However  strongly  these  reasons  apply  to  the  case  of  a 
garnishment  of  the  judgment  debtor,  in  the  same  court  in  wliith 
the  judgment  was  rendered,  their  force  is  lost  when  the  judgment 
is  in  one  court  and  the  garnishment  in  another.  There  a  new 
question  springs  up,  growing  out  of  the  conflict  of  jurisdiction 
which  at  once  takes  place.  Upon  what  ground  can  one  court  as- 
sume to  nullify  in  this  indirect  manner  the  judgments  of  another? 
Clearly  the  attempt  would  be  absurd,  especially  wliere  the  two 
courts  were  of  different  jurisdictions,  or  existed  under  different 
governments.  Take,  for  example,  the  case  of  a  court  of  law  at- 
tempting to  arrest  the  execution  of  a  decree  of  a  court  of  equity 
for  the  payment  of  money,  by  garnishing  the  defendant ;  or  that 
of  a  State  court  so  interfering  with  the  judgment  of  a  Federal 
court,  or  viee  veria :  it  is  not  to  be  supposed  that,  in  either  case, 
the  court  rendering  the  judgment  or  decree  would  or  should  tol- 
erate so  violent  an  encroachment  on  its  prerogatives  and  jurisdic- 
tion. This  question  arose  in  South  Carolina,  and  it  was  there 
held,  that  where  the  fund  sought  to  be  reached  is  in  another  court, 
it  cannot  be  attached  ;  ^  and  hence  that  a  judgment  in  a  Federal 
court  is  not  the  subject  of  attachment  in  a  State  court.^ 

§  626.  It  would  seem  to  be  almost  needless  to  remark,  that  the 
only  way  to  subject  a  judgment  to  attachment  for  the  payment  of 

1  Young  V.  Young,  2  Hill  (S.  C),  426. 

-  Burrell  v.  Letson,  2  Speers,  378.  But  the  Supreme  Court  of  Pennsylvania  held, 
that  a  judgment  debtor  in  a  judgment  recovered  in  New  York,  could  be  charged  as 
garnishee  in  Pennsylvania.     Jones  v.  New  York  &  Erie  R.  R.  Co.,  1  Grant,  457. 

[446] 


CHAP.  XXMl]         BY   DEFENDANT   AGAINST   GARNISHEE.  §  627 

a  debt  of  the  plaiutilT  therein,  is  hj  garnishment  of  the  defendant. 
Service  of  the  attachment  on  the  clerk  of  the  court  in  which  the 
judgment  was  obtained  will  not  reach  the  judgment,^  and  much 
less  would  a  seizure  of  the  judgment  record  have  that  efifect,  or  be 
at  all  adniissiVjle.^ 

§  627.  Where  it  is  sought  to  charge  a  judgment  debtor  as  gar- 
nishee, and  the  fact  of  indebtedness  is  in  issue,  the  judgment  in 
favor  of  the  attachment  defendant  against  the  garnishee  makes 
out  a  prima  facie  case  against  the  latter :  if  he  has  discharged  it, 
he  must  show  it.^  • 

1  Daley  v.  Cunningham,  3  Louisiana  Annual,  55. 

*  Hanna  i;.  Brj,  5  Louisiana  Annual,  651. 

•  O'Brien  v.  Liddcll,  10  Smedes  &  Marshall,  371. 

[4471 


§  629  ANSWER   OF   TUE   GARNISHEE.  [CIIAP.  XWIIL 


CHAPTER    XXXIII. 

ANSWER    OF   TUE    GARNISHEE. 

§  628.  In  most  of  the  States,  the  manner  in  which  a  garnishee 
responds  to  the  proceedings  against  liim,  is  by  a  sworn  answer  to 
interrogatories  propounded  to  him.  This  answer  must  be  made 
by  the  garnishee  in  person :  the  j)Ower  to  make  it  under  oath, 
cannot  be  conferred  f)n  another.^  By  the  custom  of  London  tlio 
garnishee  might  plead  that  he  had  no  moneys  of  the  defendant  in 
his  hands  at  the  time  of  the  garnishment,  or  at  any  time  since, 
and  j)ut  the  j)hiinti(T  to  prove  any  money  in  his  hands ;  or  he 
might  discharge  the  attachment  by  waging  of  Uiw,  that  is,  coming 
into  court  and  swearing,  that  at  the  time  of  the  attacliment  made, 
or  at  any  time  since,  he  had  not,  owed  not,  nor  did  detain,  nor 
yet  has,  or  owes,  or  does  detain  from  the  defendant  any  money .^ 
Pleading  to  the  garnishment  is  still  practised  in  some  States,  but 
in  far  the  larger  number  the  better  mode  of  responding  l)y  answer 
is  established.  Tiie  present  chapter  will,  therefore,  be  devoted  to 
the  consideration  of  the  Answer  of  the  Garnishee.  This  subject 
will  be  treated  under  the  following  heads  :  — 

I.  "What  the  garnishee  may  be  required  to  state,  and  may,  ex 
mero  motu,  state  in  his  answer. 

II.  What  he  may  not  be  required  to  state  in  liis  answer. 

III.  Of  amending  the  answer. 

IV.  The  effect  of  the  answer. 

V.  The  construction  to  be  given  to  the  answer. 

§  629.  I.  What  the  Garnishee  may  he  required  to  state,  and  may^ 
ex  mero  motu,  state  in  his  Ansiver.  It  is  the  duty  of  a  garnishee 
to  state,  with  entire  accuracy  and  distinctness,  all  facts  that  may 
be  necessary  to  enable  the  court  to  decide  intelligently  the  question 
of  his  liability.  It  is  no  less  his  interest  to  do  so  ;  for,  should  the 
defendant  subsequently  institute  an  action  against  him  for  the  re- 
covery of  the  debt  or  property  in  respect  of  which  the  garnishee 
was  made  liable  as  such,  it  would  be  of  the  first  importance  that 
the  record  in  the  attachment  suit  should  show  conclusively  the 

1  Dickson  v.  Morgan,  7  Louisiana  Annual,  490.  ^  Pi-iv.  Lond.  258. 

[448] 


CHAP.  XXXIII.]  ANSWER   OF   THE   GARNISHEE.  §  629  a 

ground  upon  which  the  garnishee  was  charged.  And  for  the  want 
of  such  accuracy  and  distinctness,  a  garnishee  may  be  charged 
when  he  ought  not  to  be,  or  may  escape  liability  when  in  justice 
he  should  be  "charged. 

§  629  a.  No  statements  or  representations  made  to  the  plaintiff 
by  the  garnishee,  before  his  garnishment,  as  to  his  indebtedness 
to  the  defendant,  whereby  the  plaintiff  was  led  to  institute  the 
garnishment  proceedings,  can  have  the  effect  of  estopping  the 
garnishee  from  denying  such  indebtedness  in  his  answer.  In 
Indiana  a  case  of  this  description  occurred,  where  the  garnishee 
answered,  denying  all  indebtedness,  at  any  time,  to  the  defendant. 
To  this  answer  the  plaintiff  replied,  in  estoppel,  that,  before  the 
institution  of  the  garnishment  proceedings,  the  garnishee  admitted 
and  represented  to  the  plaintiff  that  he  had  made  a  certain  pur- 
chase of  property  of  a  third  person,  which  really  belonged  to  the 
defendant ;  and  that  a  portion  of  the  purchase  money  remained 
unpaid  ;  and  that  if  the  plaintiff  would  summon  him  as  garnishee, 
'he  would  pay  that  unpaid  portion  to  the  plaintiff;  whereby  the 
plaintiff  was  induced  to  institute  the  garnishment  proceedings. 
To  this  reply  the  garnishee  demurred ;  and  in  the  Supreme  Court 
it  was  held,  that  t!ie  facts  therein  set  forth  did  not  estop  the  gar- 
nishee from  denying  indebtedness  to  the  defendant.^ 

1  Lewis  f.  Prenatt,  24  Indiana,  98.  The  court  said  :  "  The  matter  allo{,'ed  by  way 
of  estoppel  falls  very  far  short  of  being  such.  It  consists  merely  of  the  admissions 
of  the  garnishee,  and  that  the  plaintitTs  were  induced  thereby  to  commence  their  pro- 
ceedings against  him  as  garnishee.  When,  by  the  admission  of  a  fact,  which  is  not 
true,  one  draws  another  into  a  line  of  conduct  from  which  he  cannot  recede,  and  which 
must  result  to  his  injury,  if  the  fact  be  otherwise  than  it  was  represented,  the  j>iirty 
making  the  admission  will  not  aftenvards  be  permitted  to  .show  the  truth  to  be  other- 
wise, for  the  reason  that  he  would  thereby  perpetrate  a  fraud  upon  the  party  whom  he 
had  misled. 

"  It  is  difficult  to  see  how  the  doctrine  could  apply  against  a  garnishee,  as  such.  lie 
must  answer  under  oath,  and  to  estop  him  from  answering  truly  would  be  to  rcfpiire 
him  to  commit  i)erjury.  And  then  the  proceeding  seems  designed  to  enforce  only  the 
rights  of  the  defendant  against  the  garnishee,  and  apply  them  to  the  satisfaction  of  tlie 
plaintiff's  demand  against  him;  and  is  not,  probably,  designed  to  enable  the  plaintiff 
to  compel  the  performance  of  additional  obligations  which  have  arisen  in  his  own  be- 
half against  the  garnishee.  But  we  need  not,  and  do  not,  place  the  present  decision 
upon  either  of  the  grounds  last  alluded  to.  It  is  sufficient  that  the  facts  pleaded  do 
not,  at  any  rate,  constitute  an  estoppel.  The  plaintiff  parted  with  no  right,  and  re- 
linquished no  security ;  he  stood  exactly  as  he  did  before  the  garnishee  made  the  repre- 
sentations to  him,  in  all  his  relations  with  the  whole  world,  except  that  he  commenced 
his  proceedings  of  garnishment,  and  thereby  incurred  costs.  And  the  record  informs 
•us  that  the  garnishee  at  once  otfered,  in  open  court,  to  rei)air  the  injury  by  confessing 
iud^ment  for  such  costs.  "We  think  that  the  demurrer  should  have  Iteen  sustained." 
29  [44'J] 


§  630  a  ANSWER   OF   THE   GARNISHEE.  [CHAP.  XXXIH 

§  G30.  It  is  also  the  duty  of  a  gariiislico  to  state  in  his  answer 
every  fact  within  his  knowledge,  which  had  destroyed  the  relation 
of  debtor  and  creditor  previously  existing  between  him  and  the 
defendant.  If  he  fail  to  disclose  a  fact  which,  if  disclosed,  would 
have  prevented  a  judgment  against  him,  he  cannot  afterwards  set 
up  that  judgment  in  bar  of  a  recovery  on  the  debt  he  owed  the 
defendant,  and  which  he  knew  had  passed  into  tlie  hands  of  a  third 
persoii  before  he  answered  as  garnishee.  Therefore,  where  A.  was 
garnished  in  a  suit  against  B.,  and  failed  in  his  answer  to  disclose 
the  fact,  —  which  was  known  to  him,  —  that,  before  the  garnish- 
ment, B.  had  applied  to  the  District  Court  of  the  United  States 
to  be  declared  a  bankrupt,  and  soon  after  was  so  declared  ;  and 
judgment  was  accordingly  rendered  against  A.  for  the  debt  he 
confessed  to  be  owing  to  B. ;  and  afterwards  he  was  sued  by  the 
assignee  in  bankruptcy  ujton  the  debt,  and  set  up  as  a  defence  the 
judgment  rendered  against  him  as  garnishee  ;  it  was  held,  that, 
having  in  his  answer  concealed,  or  omitted  to  give  notice  of,  a  fact 
which  he  was  bound  to  disclose,  and  which  would  have  prevented 
a  judgment  against  him,  the  defence  was  unavailable.^  So,  where, 
by  law,  wages  due  to  a  person  are  exempt  from  attachment,  and 
A.  gave  to  B.  a  due-bill  for  an  amount  due  him  for  wages,  and, 
upon  being  summoned  as  garnishee  of  B.,  answered,  admitting 
the  giving  of  the  due-bill,  but  said  nothing  as  to  the  consideration 
for  wliich  it  was  given,  and  was  charged  as  garnishee  ;  it  was  held, 
in  an  action  against  him  by  B.  on  the  due-bill,  that  the  judgment 
against  him  was  no  defence.^ 

§  630  a.  It  often  happens  that  the  same  individual  is  garnished 
in  several  suits  against  the  same  defendant ;  and  in  reference  to 
such  a  state  of  fact  the  importance  of  care  in  the  framing  of  the 
garnishee's  answer  in  each  case  after  the  first  is  strikingly  en- 
forced. If  the  garnishments  occurred  at  different  times,  the 
garnishee  has  no  occasion,  in  answering  the  first,  to  refer  to  the 
subsequent  ones  ;  but  in  every  subsequent  case  he  should  set 
forth,  and  bring  clearly  to  the  notice  of  the  court,  all  previous 

1" Nugent  V.  Opdyke,  9  Robinson  (La.),  453.  See  also  Milliken  v.  Loring,  37  Maine, 
408;  Prescott  v.  Hull,  17  Johns.  284;  Colvin  v.  Rich,  3  Porter,  175  ;  Lamkin  v.  Phil- 
lips, 9  Ibid.  98;  Foster  v.  White,  Ibid.  221  ;  Johns  v.  Field,  5  Alabama,  484;  Crayton 
V.  Clark,  11  Ibid.  787;  Smoot  i'.  Eslava,  23  Ibid.  659;  Stockton  v.  Hall,  Hardin,  160, 
Pitts  V.  Mower,  18  Maine,  361  ;  Bunker  v.  Gilmore,  40  Ibid.  88;  Handy  v  Hunt,  11 
California,  343;  Walling  v.  Miller,  15  Ibid.  38. 

2  Lock  V.  Johnson,  36  Maine,  464. 
[450] 


CHAP.  XXXni.]  ANSWER    OF   THE    GARNISHEE.  §  632 

garnishments,  so  as  to  secure  himself  against  any  more  judgments, 
than  the  debt  owing  by  him,  or  the  effects  in  his  hands,  will 
justify.  And  where  two  or  more  garnishments  are  simultaneously 
made,  the  fact  of  their  having  been  so  made  should  be  stated  by 
the.  garnishee,  so  as  to  enable  the  court  to  settle  the  several 
rights  of  the  attachers,  as  well  as  protect  him.  If  the  garnishee 
fail  in  thus  presenting  the  facts,  and,  in  consequence  thereof,  more 
judgments  are  rendered  against  him  than  the  debt  owing  or  the 
efifects  held  by  him  authorized,  he  is  wholly  remediless.  He 
brings  upon  himself  a  double  liability  by  his  own  negligence, 
and  the  law  will  not  protect  a  negligent  garnishee,  any  more 
than  it  will  jnstify  carelessness  in  any  other  party  ;  especially 
where  such  negligence  may  result  to  the  injury  of  a  bond  fide 
creditor.^  In  every  case  of  this  description  the  second  garnish- 
ment must  remain  unacted  upon  until  the  first  has  been  disposed 
of.  The  garnishee  cannot  be  discharged  in  the  second  case,  be- 
cause of  his  having  been  summoned  in  the  first;  for  the  plaintiff 
in  the  first  may  recover  no  judgment,  or  one  for  less  than  he 
claimed,  and  so  leave  effects  in  the  garnishee's  hands  sufficient 
to  meet  tlie  second.  The  proper  course  is  to  continue  the  second 
case  until  the  first  is  finally  determined.^ 

§  631.  But  thougli  the  garnishee  is  imder  obligation,  for  his 
own  protection  and  that  of  third  parties,  to  state  all  facts  within 
his  knowledge  which  have  destroyed  the  relation  of  debtor  and 
creditor  l)etween  him  and  the  dof(;ndant,  he  cannot  be  allowed  in 
his  answer  to  make  allegations,  which  have  the  effect  of  changing 
the  terms  of  a  written  contract,  under  which  he  appears  to  be  a 
debtor  of  the  defendant.  Therefore,  where,  by  a  written  contract, 
the  garnislice  was  bound  to  pay  the  defendant  a  certain  sum 
of  money,  it  was  held,  that  he  could  not  allege  in  his  answer 
that  that  sum  was  to  be  paid  in  a  certain  description  of  bank 
paper.^ 

§  632.  If  the  garnishee  was  not  indebted  to,  or  did  not  hold 
property  of,  the  defendant,  he  should  simply  and  explicitly  so 
declare.  If  he  be  in  doubt  wliethcr  under  an  existing  state  of 
facts  he  is  chargeable,  he  should  state  all  the  essential  facts  with 

1  Houston  V.  Wolcott,  7  Iowa,  173.  »  Field  r.  Watkins,  5  Arkansas,  672. 

^  Cutter  V.  Perkins,  47  Maine,  557. 

[451] 


§  635  ANSWER  OF  Tin:  garmsiiee.  [chap.  xxxm. 

minuteness  and  precision,  and  leave  it  for  the  court  to  decide 
tlie  question  of  his  liability.  And  it  will  he  advisable  for  him 
to  take  the  same  course,  whenever  his  liability  grows  out  of 
transactions  in  which  are  involved  a  multiplicity  of  facts.  If  he 
is  indebted  to  the  defendant  on  account  of  a  single  transaction, 
of  simple  contract,  —  which  is  the  most  usual  case,  —  he  should, 
in  like  manner,  state  the  f\xcts  out  of  which  his  indebtedness 
arose. 

§  633.  In  all  cases  he  should  carefully  avoid  any  evasion  or 
equivocation,  for  an  evasive  answer  will  be  treated  as  a  nullity,* 
and  any  etpii vocation  would  subjt-ct  tlie  whole  answer  to  suspicion. 
He  should,  with  equal  care,  avoid  admitting  himself,  in  his  an- 
swer, liable  as  garnishee  when  in  fiict  he  is  not,  for  when  ho 
has  once  made  such  an  admission,  it  is  said  he  is  estopped  from 
afterward  denying  it.^ 

§  634.  The  important  points  to  be  attained  in  framing  a  gar- 
nishee's answer,  are  fulness  and  explicitness.  The  alisence  from 
an  answer  of  either  of  these  qualities  might  in  many  cases  subject 
the  garnishee  to  a  judgment  against  him.  He  should  answer 
every  pertinent  interrogatory,  so  far  as  he  is  able,  if  not  in  his 
power  to  do  so  fully  ;  otherwise,  it  is  said  in  Massachusetts,  ho 
will  be  charged,  even  though  he  should  declare  his  belief  that  he 
has  in  his  hands  nothing  of  the  defendant's.^  And  there  should 
be  nothing  doubtful  in  his  expressions  ;  for,  on  the  ground  that 
he  might  have  used  expressions  in  which  there  should  have  been 
no  doubt,  those  of  a  doubtful  kind  will  be  construed  against  him.* 
The  full  extent  and  application  of  this  last  rule  will  be  considered 
under  the  fifth  head  of  this  chapter. 

§  635.  When  the  answer  of  a  garnishee  shall  have  come  up  to 
the  foregoing  rules,  and  is  full  and  intelligible  in  reply  to  the 
interrogatories  exhibited  against  him,  the  court  will  protect  him 
from  further  interrogatories,  in  relation  to  the  matters  embraced 
in  his  answer.     Thus,  where  the  garnishee  stated  in  his  answer 

1  Scales  V.  Swan,  9  Porter,  163.    . 

2  Woodbridge  i'.  Winthrop,  1  Root,  557. 
8  Shaw  V.  Bunker,  2  Metcalf,  376. 

*  Sebor  v.  Armstrong,  4  Mass.  206  ;  Cleveland  v.  Clap,  5  Ibid.  201  ;  Kelly  v.  Bow- 
man, 12  Pick.  383  ;  Sampson  v.  Hyde,  16  New  Hamp.  492. 
[452] 


CHAP.  XXXni.]       ANSWER  OF  THE  GARNISHEE.  §  636 

that  a  certain  sum  was  in  his  hands  which  had  been  earned  by 
the  defendant,  and  for  which  the  defendant  had  drawn  an  order 
on  him  payable  to  a  third  person  ;  and  tlie  plaintiff  presented  an 
additional  interrogatory,  requiring  the  garnishee  to  "  state  dis- 
tinctly how  much  money  was  in  his  hands,  at  the  time  of  the 
service  of  the  writ  on  him,  which  had  been  earned  by  the  de- 
fendant" ;  the  court  held,  that  the  garnishee  could  not  be  charged 
in  consequence  of  a  refusal  to  answer  this  interrogatory,  because 
it  merely  demanded  of  him  to  state  distinctly  what  he  had  fully 
stated  before.^  And  where  the  garnishee  fully  answered  as  to  all 
matters  between  him  and  the  defendant  at  the  time  of  and  prior 
to  the  garnishment ;  but  refused  to  answer  interrogatories  in 
regard  to  transactions  between  them  after  the  garnishment,' and 
which  he  declared  had  no  connection  with  any  business  or  lia- 
bilities between  him  and  the  defendant ;  the  court  held  him  not 
chargeable  by  reason  of  his  refusal  to  answer  those  interroga- 
tories.^ 

§  036.  "VThethcr  a  garnishee  may  in  any  case  be  charged  because 
he  refuses  to  answer  pertinent  interrogatories,  must  depend  upon 
positive  law,  or  established  practice.  In  Vermont,  it  is  held  to  be 
discretionary  with  the  court  to  charge  him  or  not,  and  that  the 
exercise  of  that  discretion  will  not  be  revised  by  a  superior 
tribunal.^  Ordinarily  the  course  to  be  pursued  under  such  cir- 
cumstances is  prescribed  by  statute.  In  some  States,  the  gar- 
nishee may  be  comjjelled  to  answer  by  attachment  of  his  body ; 
or  judgment  by  default  may  be  taken  against  him,  to  be  made 
final  in  the  same  manner  as  in  the  case  of  a  defendant,  —  in 
which  case  the  plaintiff  must  prove  the  garnishee's  liability  ;*  or 
the  refusal  to  answer  is  declared  to  be  an  admission  that  he  has 
effects  of  the  defendant,  or  is  indebted  to  him,  to  an  amount 
sufficient  to  satisfy  the  plaintiff's  demand  ;  when  judgment  will 
go  against  him  as  if  he  had  made  the  admission  in  terms.  In 
this  case,  if  there  are  several  interrogatories,  a  refusal  to  answer 
one,  of  a  material  character,  will  not  be  excused  because  the 
answer  to  the  others   implies  a  response  to  it.     The   garnishee 

1  Carrique  r.  Sil^o^)OttO!n,  3  Mctcalf,  297. 

2  Humphrey  »•.  Wiirren,  45  Maine,  216. 

8  Worthinj^ton  v.  .Jones,  23  Vermont,  546 ;  Knapp  v.  Levanway,  27  Ibid.  298. 
*  Brotiiertou  i-.  Anderson,  6  Missouri,  388 

[453] 


§  638  ANSWER   OF   THE   GARNISHEE.  [CIIAP.  XXXHI. 

must  aiipwcr  all,  in  a  plain  and  distinct  manner,  or  he  will  l»c 
made  liable.^ 

§  637.  It  is  not  necessary  to  the  fulness  and  cxj)licitness  of  a 
garnishee's  answer,  that  it  should  be  conformed  to  the  technical 
rules  of  pleading.  In  this  respect  it  partakes  of  the  nature  of  an 
answer  in  chancery.  Thus,  where  a  garnishee  answered  that  he 
owned  a  note  of  the  defendant  for  an  amount  greater  than  his^ 
indel)tedness  to  the  defendant,  and  on  the  trial  oflered  in  evidence 
an  instrument  in  all  respects  conformable  to  that  described  in  the 
answer,  save  that  it  was  a  bond  instead  of  a  note,  it  was  held, 
that  the  answer  was  substantially  sustained,  and  that  it  was  of  no 
consequence  that  tiie  garnishee  had  failed,  in  describing  the  in- 
strument, to  employ  the  proper  legal  terms.^ 

§  638.  While  it  will  be  required  of  a  garnishee  to  answer  fully 
and  intelligibly  all  pertinent  interrogatories  put  to  hira,  regard 
will  still  be  had  to  the  circumstances  in  which  he  is  placed,  and 
which  may  prevent  as  full  and  positive  an  answer  as  would  be 
desirable.  If  the  answer  is  deficient  in  these  respects,  but  it 
appears  that  the  garnishee  has  responded  as  fully  and  positively 
as  he  could,  he  will  not  be  charged  for  failing  to  do  more.  Thus, 
where  the  administrator  of  a  person,  who,  in  his  lifetime  had  been 
garnished,  answered  "  to  the  best  of  his  knowledge,"  it  was  held, 
that,  though  the  answer  might  not  be  sufficient,  if  it  had  come 
from  one  having  certain  knowledge  of  the  business,  yet  as  it  could 
not  be  expected  that  the  administrator  should  be  possessed  of  the 
same  degree  of  knowledge  as  the  intestate,  and  the  answer  ap- 
peared to  be  the  best  that  could  be  obtained,  it  was  sufficient.^  So, 
where  a  garnishee  disclosed  that  the  defendant  had  agreed  to 
build  a  house  for  him,  and  he  had  agreed  to  pay  the  defendant 
certain  sums  at  certain  stages  of  the  work  ;  that  he  had  generally 
paid  before  the  instalments  became  due  ;  but  that  he  had  no 
means  of  ascertaining  whether,  at  the  time  he  was  summoned,  the 
payments  were  in  advance  of  the  work  or  not ;  it  was  held,  that 
he  should  not  be  charged  ;  the  answer  appearing  to  be  as  definite 
as  it  could  be  made.* 

1  Deblanc  v.  Webb,  5  Louisiana,  82  ;  Vason  v.  Clarke,  4  Louisiana  Annual,  581. 

2  Ashby  V.  Watson,  9  Missouri,  235. 

'  Ormsby  v.  Anson,  21  Maine,  23.  *  Harris  v.  Aiken,  3  Pick.  1. 

[454] 


CHAP.  XXXIII.]  ANSWER    OF   THE    GARNISHEE.  §  639 

§  639.  A  garnishee,  in  framing  his  answer,  need  not  confine 
himself  to  matters  within  his  own  knowledge,  but  may  introduce 
into  it  any  extrinsic  facts  which  lie  supposes  important  to  a  correct 
determination  of  the  que>tion  of  his  liability,  or  in  reference  to 
the  interests  of  others.  Whether  such  facts  will  affect  the  issue 
will,  of  course,  be  decicled  by  the  court.  It  is  principally  in 
regard  to  tlie  rights  of  tliird  persons,  not  parties  to  the  proceed- 
ings, that  the  introduction  of  such  facts  is  desirable.  They  would 
often  be  without  protection,  unless  the  garnishee  were  at  liberty 
thus  to  Ijring  their  rights  under  the  cognizance  of  the  court.  The 
extrinsic  facts  thus  introduced  may  be  of  almost  any  description. 
They  may  consist  of  writings,  or  verbal  communications,  or  affi- 
davits proceeding  from  third  persons,  and  having  reference  to  the 
question  of  his  liability  as  garnisliee. 

Thus,  a  garnishee  answered  that  he  had  executed  a  bond  to  the 
defendant,  conditioned  for  the  payment  to  him  of  8  1,000,  in  one 
year  after  the  deatli  of  the  defendant's  mother,  and  that  he  should 
pay  the  annual  interest  on  that  sum  to  the  mother  during  her  life; 
that  he  was  informed,  at  the  time  of  executing  the  bond,  and  had 
reason  to  believe,  that  it  was  originally  taken  Ijy  the  defendant  for 
the  use  of  himself,  his  brotlier,  two  sisters,  and  a  minor  child  of  a 
deceased  brother,  the  heirs  at  law  of  the  defendant's  mother  ; 
that  the  mother  had  died  ;  tliat  the  defendant,  after  her  death, 
drew  an  order  on  the  garnishee  for  SoiiO,  stathig  that  sum  to  be 
iu  full  for  his  part  of  the  bond  ;  and  that  in  the  letter  to  the 
drawee,  covering  the  order,  the  defendant  said  that  the  other 
part  of  the  bond  belonged  to  the  other  heirs  of  his  mother ;  and 
the  order  and  letter  were  annexed  to  and  made  part  of  the  an- 
swer. It  was  objected  that  these  documents  could  not  be  re- 
ceived as  part  of  the  answer  ;  but  the  objection  was  overruled, 
on  the  ground  that  if  it  were  not  competent  to  the  garnishee 
to  disclose  anything  but  what  is  within  his  own  personal  knowl- 
edge, the  interests  and  rights  of  cestuis  que  trust  would  be  in 
great  jeopardy  ;  for  their  property  would  go  to  pay  the  debts 
of  tlie  trustee,  and  he  might  be  wholly  unable  to  respond.^ 
So,  where  a  garnishee  offered  as  a  part  of  his  answer,  certain 
affidavits  of  third  persons,  the  court  held  them  admi:<sible ; 
and  laid  down  the  broad  proposition,  that  a  garnishee  might 
refer   to  letters,  statements,   assignments,  or   other   instruments 

1  "Willard  v.  Sturtevant,  7  Pick.  194. 

[455] 


§  G40  ANSWER   OF  THE   GARNISHEE.  [CHAP.  XXXIH 

and  documents,  and  'adopting  them,  make  thorn  jiart  of  his 
answer.^ 

In  all  such  cases,  however,  it  is  considered,  in  Massachusetts, 
where  the  answer  is  conchisivc,  and  cannot  he  controverted,  that 
the  extrinsic  facts  thus  hrought  into  the  answer  have  no  force  iu 
themselves,  but  are  to  be  regarded  only  so  far  as  the  garnishee  may 
declare  his  belief  in  their  truth.  They  arc  received  on  the  ail- 
thority  of  his  oath.  If  he  does  not  believe  them  to  be  true,  he 
ought  nut  to  make  them  part  of  his  answer.  If  he  makes  them  a 
j)art  of  his  answer,  and  at  the  same  time  states  his  disbelief  of 
their  truth,  the  answer  would  so  far  be  nilgatory.  Hence  it  is  not 
alone  the  facts  themselves,  Init  the  garnishee's  adoption  of  them, 
and  his  belief  in  their  truth,  that  give  them  weight  in  thf  tpn'stion 
of  his  liability .2  Therefore,  an  aflidavit  made  by  a  person  inter- 
ested in  the  suit  will  be  received,  when  made  a  part  of  the  gar- 
nishee's answer,  because  it  is  received  on  the  garnishee's  oath, 
and  not  as  the  testimony  of  a  witness.* 

But  where,  on  the  examination  of  a  garnishee,  a  letter  was 
shown  him  from  a  third  person  not  a  party  to  the  suit,  for  the 
purpose  of  establishing  that  the  property  in  the  garnishee's  hands 
was  not  the  defendant's  but  another's,  and  the  garnishee  authenti- 
cated the  signature  to  the  letter,  but  said  nothing  of  its  contents ; 
the  court  refused  to  receive  the  letter  as  a  part  of  his  answer,  be- 
cause, though  its  genuineness  was  established,  its  contents  might 
be  untrue,  and  could  not  be  presumed  to  be  true.* 

§  639  a.  It  is  no  valid  objection  to  an  interrogatory  to  a  gar- 
nishee, that  it  requires  him  to  make  a  statement  of  his  accounts 
with  the  defendant.  Sometimes  that  might  be  the  only  mode  of 
ascertaining  the  true  state  of  the  accounts  of  the  parties  ;  and 
litigants  cannot  be  deprived  of  their  rights,  because  it  may  occar 
sion  the  garnishee  some  inconvenience.^ 

§  640.   It  has  been  attempted  to  screen  garnishees  from  answer- 

1  Kelly  V.  Bowman,  12  Pick.  383  ;  Giddings  r.  Coleman,  12  New  Hamp.  153 ;  Bell 
I".  Jones,  17  Ibid.  307. 

-  Hawes  v.  Langton,  8  Pick.  67  ;  Kelly  v.  Bowman,  12  Ibid.  383. 

8  Kelly  V.  Bowman,  12  Pick.  383.  But  such  affidavit  will  not  be  received  >r  noticed 
when  not  made  part  of  the  garnishee's  answer.     Minchin  v.  Moore,  11  Masa  90. 

*  Stackpole  v.  Newman,  4  Mass.  85. 

6  Request  v.  Steamer  B.  E.  Clark,  13  Louisiana  Annual,  210. 
[456] 


rrx?.  xxxin.]  answer  of  the  garnishee. 


§642 


:.ig  interrogatories,  a  response  to  which  might  show  them  to  have 
been  parties  to  fraudulent  sales  or  dispositions  of  personal  prop- 
erty;  but  so  far  the  courts  have  sustained  such  questions,  and 
required  disclosures,  even  though  the  effect  might  be  to  subject 
the  garnishee  to  liability  as  such  out  of  his  own  property .^ 

§  041.    11.   What  the  Garnishee  may  not  he  required  to  state  in  his 
An^iicer.     A  tery  wide  latitude  of  interrogatory  is  usually  allowed, 
in  endeavoring  to  ascertain  wliether  the  garnishee  can  be  made 
liable.     Almost  every  variety  of  question  bearing  upon  this  point 
may  be  prui)ounded,  and  an  answer  required,  and,  where  author- 
ized by  statute,  or  by  the  course  of  practice,  compelled,  by  attach- 
ment of  the  garnishee's  body.     Still,  there  must  be  a  limit  to  this 
power  of  inquisition  ;  and  the  garnishee  has  a  right  to  have  the 
correctness  of  a  proposed  inquiry  adjudicated  by  the  court,  and  is 
not  bound  to  submit  to  any  and  every  conceivable  investigation, 
with.nit   objection  ;   or,  if  he  objects,  become   liable  to  pay  the 
entire  debt  in  the  main  action,  if  his  objection  should  prove  un- 
founded.2     ^Vnd  it  seems  to  be  conceded  that  the  limit  of  investi- 
gation is  to  be  n.xed  in  the  discretion  of  the  court  in  which  the 
garnishee  is  examined  ;  the  action  of  which  will  not  be  revised  by 
a  superior  tribunal.^     Therefore,  where  a  garnishee  after  answer- 
ing, was  requir.'d  to  answer,  and  did  answer,  three  sets  of  interrog- 
atories in  detail,  and  the  plaintiff  liled  a  f.)urth  set,  the  garnishee 
prayed  the  opinion  of  the  court  whether  he  was  bound  to  answer 
them,  and  the  court  decided  he  was  not.* 

S  t;42.  All  interrogatories  must  be  confined  to  suqh  matters,  as 
the  law  by  which  they  arc  authorized,  contemplates  as  th«3  ground 
of  a  garnishee's  liability.  Thus,  where  a  statute  authorized  the 
I^aintlff  to  exhibit  interrogatories  touching  the  estate  and  effects 
of  the  defendant  in  possession  or  charge  of  the  garnishee,  or  debts 
dne  and  owing  from  him  to  the  defendant,  and  one  who  held  the 
office  of  justice  of  the  peace  was  garnished,  and  the  question  was 
put  to  him  how  many  judgments  were  entered  on  his  docket  in 
favor  of  the  attachment  defendant,  and  when,  against  whom,  and 

1  Devoll  I'.  BrowneU,  5  Pick.  448;  Ncally  v.  Ambrose,  21  Ibid.  183;  Lamb  r.  Stone, 
11  Pick.  527. 

-  Siiwvi-T  r.  Webb,  5  Iowa,  315. 

«  Wor'thin-ton  r.  Jonus,  23  Vermont,  546  ;  Knapp  v.  Lcvanway,  27  Ibid.  298. 

«  Warner  t.  Perkins  8  Cushing,  518.     Sec  ante,  §  635. 

[tD7] 


§  644  ANSWER   OF   THE   GARNISHEE.  [CHAP.  XXXIIL 

for  wliut  amount  tlioy  were  respectively  entcre<]  ;  it  was  held,  that 
the  question  was  illegal,  and  not  such  as  the  garnishee  was  hound 
to  answer.^  So,  where  interrogatories  were  propounded  to  a  gar- 
nishee relating  to  personal  projierty  mortgaged  to  him  hy  the 
defendant,  to  indemnify  him  against  liabilities  he  had  assumed  for 
t!)e  defendant ;  it  was  held,  that,  as  a  mortgagee  of  goods  not  in 
possession  of  them  could  not  be  charged  as  garnishee  in  respect 
of  the  mortgage,  the  questions  were  impertinent,  and  should  not 
be  answered.''^ 

§  043.    Every  court  will  of  course  i)rotect  the  garnishee  from 

i:npertinent  and  vexatious  questions,  especially  after  he  has  fully 

answered.     Hence,  in  ^lassachusetts,  where  a  garnishee  had   so 

answered,  and  the  plaintill"  put  further  interrogatories,  requiring 

,  liim  to  state  whether  he  had  not,  in  conversation  with  third  per- 

/    sons,  said  differently  from  the  statements  of  his  answer,  the  court 

^^    declared  thnt  the  plaintiff  had  no  right  to  ask  questions  for  the 

;'    purpose  of  discrediting  th(!  garnishee's  disclosures  ;  that  the  j)lain- 

'    tiff  was  bound  to  take  the  garnishee's  statements  under  oath  as 

j    truth,  and  could  neither  imjieach  his  chara'Ctcr  nor  dbilTTaJict  his 

I    testimony ;  that  therefore  he  was  not  entitled^  to  the  privilege  of 

^    cross-examhiation ;  and  that  what  the  garnishee  might  have  told 

other  persons,  or  said  on  former  occasions  is  immaterial,  and  not 

a  proper  subject  of  inquiry.^ 

§  044.  It  may  l)e  regarded  as  a  sound  rule,  that  a  garnishee 
shall  not  be  required  to  state  in  his  answer  anything  that  will  de- 
prive him  of  a  defence  against  the  debt  to  the  defendant,  which, 
if  he  were  sued  by  the  defendant,  he  might  set  up  in  bar  of  the 
action.  Thus,  where  a  garnishee  answered,  that,  more  than 
twenty  years  before  he  was  summoned,  he  had  given  a  bond  to 
the  defendant,  payable  on  demand,  the  point  was  made  whether 
lie  could  be  asked  if  he  had  paid  the  bond  ;  ai^l  the  court  would 
not  suffer  the  question  to  be  put,  because  that  would  be  to  make 
liim  give  up  a  defence  he  would  have  if  sued  by  the  defendant; 
when  he  might  plead  payment  and  rely  on  the  lapse  of  time  to 
support  the  plea.* 

1  Corbyn  v.  Bollman,  4  Watts  &  Sergeant,  342;   Lyman  v.  Parker,  33  Maine,  31 ; 
Ptoquest  V.  Steamer  B.  E.  Clark,  13  Louisiana  Annual,  210. 
-  Callender  v.  Furbish,  46  Maine,  226. 

'^  Grossman  v.  Grossman,  21  Pick.  21  ;  Warner  v.  Perkins,  8  Gushing,  518. 
*  Gee  V.  Warwick,  2  Haywood  (N.  C.),  35i. 
[458] 


CHAP.  XXXIII.]  ANSWER   OF   THE   GARNISHEE.  §  647 

§  G4.1  It  seems  to  be  sustained  by  authority,  and  consonant  with 
sound  principles,  that  a  garnishee  shall  not  be  required  to  state 
anything  in  his  answer  which  will  show  him  to  have  been  guilty 
of  a  vioUition  of  law.  Thus,  where  a  garnishee  was  asked  whether 
he  had  n.^t  receivtid  usurious  interest  of  the  defendant,  it  was  held, 
that  lu'  could  not  answer  affirmatively  without  criminating  hnu- 
self,  and  therefore  should  not  be  required  to  respond  to  the  inter- 
rogatory.^ 

§  G4G.  It  has  also  been  held  in  Massachusetts,  and  in  Maine, 
that  a  fruniishee  shall  not  be  compelled  to  state  anything  which 
mi-ht  tend  to  impair  or  impeach  his  title  to  real  estate,  which  he 
derived  from  the  defendant.^  In  New  Hampshire,  however,  the 
contrary  doctrine  was  held,  in  a  case  where  the  garnishee  stated 
in  his  answer  a  conveyance  of  real  estate  to  him  by  the  defendant, 
and  the  court  required  an  answer  to  supplementary  interrogatories, 
intended  to  show  the  conveyance  to  have  been  made  without  con- 
sideration.^ 

§  G4T.    Where,  however,  the  garnishee  disclosed  a  conveyance 
of  real  estate  by  the  defendant  to  him,  it  was  decided  that  the 
following  (luestion  might  be  put  to  him :  "  Is  there  any  real  estate 
in  vour  possession,  belonging  to  the  defendants,  which  you  hold  in 
trust  for  them,  so  that  you  are  accountable  for  the  rents  and  profits 
thereof  'i    or  are  you  under  any  obligation  to  account  for  the  pro- 
ceeds  of  the  same,  or  of  any  part  thereof,  if  sold  by  you  ?  " "    And 
in  a  case,  where  it  was  alleged  that  real  estate  conveyed  by  the 
defendant  to  the  garnishee  was  held  in  trust,  to  be  disposed  of  for 
the  benefit  of  the  latter,  the  court  decided  that  the  garnishee  might 
be  required  to  answer  the  following  question:   ^'.  At  the  time  you 
received  a  deed  or  deeds  of  land  from  the  defendant,  or  at  any 
other  time  since,  was  there  any  agreement  in  writing  or  by  par(jl, 
that  you  should  dispose  of  the  same  and  account  to  him  in  any 
manner  for  the  proceeds  ?  "  —  and  that,  in  the  event  of  the  ques- 
tion being  answered  in  the  affirmative,  there  might  be  a  further 
examination  as  to  the  disposition  of  the  proceeds.^ 

1  Boardinan  r.  Roe,  13  Mass.  104. 

•■!  Boardtnim  r.  Hoc,  13  Mass.  104 ;   RusseU  v.  Lewis.  15  Ibid.  127 ;   Moor  v.  Towle. 
38  Maine,  1.33. 

8  Bell  V.  Kendrick,  8  New  Hamp.  520. 

*  Russell  r.  Lewis,  15  Ma.s.  127.  ^  Hazcn  r.  Emerson,  9  Pick.  144. 

[459] 


§   '  '^  ANSWER   OF   THE   GARXISUEE.  [CHAP.  XXXHT. 

§  <!48.  The  extent  to  which  privileged  eommiinieations  to  a 
garnishee  arc  protected  from  the  searching  scrutiny  of  a  phiintiff's 
interrogatories  seems  not  to  have  been  the  subject  of  adjudication. 
A  question  somewliat  of  that  character  was  raised  in  Louisiana, 
but  did  not  lead  to  the  expression  of  any  opinipn  by  the  court  on 
the  general  subject.  An  attorney  at  law  was  garnished,  and  an- 
swered that  lie  had  received  a  sum  of  money  on  account  of  the 
defendant,  whose  attorney  he  was,  but  added  that  he  had  almost 
immediately  paid  it  over  according  to  his  client's  instructions. 
When  questioned  as  to  when  and  to  whom  ho  paid  it,  he  refused 
to  answer ;  contending  that  he  could  not  answer  without  disclos- 
ing matters  and  instructions  confided  to  him  in  professional  con- 
fidence. But  the  court  held,  that  the  disclosure  could  not  be  ob- 
jected to  on  that  ground,  as  the  time  of  payment  was  within  his 
knowledge,  independently  of  any  communication  he  might  havo 
received  from  his  client;  and  enforced  its  opinion  with  some 
instructive  remarks  about  "  a  barefaced  resort  to  such  shameful 
evasions,  under  the  pretence  of  a  scrupulous  regard  for  jjrofes- 
sional  obligations."  ^ 

§  049.  "We  have  seen  that  a  garnishee  may  make  the  statements 
of  others  a  part  of  his  answer,  and  that,  when  so  made,  they  will 
be  received  and  considered.  It  is,  however,  entirely  at  his  option 
to  incorporate  such  statements  in  his  answer,  and  the  court  will 
not  compel  him  to  do  so  against  his  will.  Therefore,  where  the 
plaintiff  delivered  to  the  garnishee  an  affidavit  of  the  defendant 
touching  the  effects  in  the  garnishee's  hands,  and  tending  to  sul>- 
ject  them  to  the  attachment,  and  requested  the  garnishee  to  make 
the  affidavit  a  part  of  his  answer,  which  was  refused  ;  the  court 
decided  that  it  had  no  power  to  compel  a  compliance  with  the 
plamtiff's  demand.2 

§  650.  III.  Of  amending  the  Anstver  of  a  Garnishee.  The  pro- 
priety of  allowing  a  garnishee  to  amend  his  answer,  or  to  put  in  a 
new  answer,  has  in  several  instances  been  the  subject  of  discussion, 
and  it  has  uniformly  been  sustained.  There  is,  indeed,  no  suf- 
ficient reason  why  an  amendment  in  such  case  should  not  be  per- 
mitted.    There  may  be  cases,  where  the  garnishee  discovers  new 

1  Comstock  V.  Paie,  18  Louisiana,  479. 

-  Hawes  v.  Langtou,  8  Pick.  67 ;  Kelly  v.  Bowman,  12  Ibid.  383. 
[400] 


CHAP.  XXXIII.]  ANSWER   OF   THE   GARNISHEE.  §  952 

facts,  or  finds  that  he  has  made  an  imperfect  or  erroneous  state- 
ment ;  and  there  seems  to  be  nothing  in  principle  to  prevent  him, 
before  final  judgment,  from  making  a  more  complete,  perfect,  and 
correct  answer,  being  responsiljle  as  in  all  other  cases  for  its  truth. 
The  only  objection  which  could  arise  is,  that  a  garnishee  might  be 
induced,  by  new  suggestions  and  new  views,  to  put  in  an  answer 
varying  from  his  first  answer,  and  not  true  in  itself.  But  when  it 
is  conb'idLTed,  that  by  any  mode  of  administering  the  law,  the  gar- 
nisliee  mav  take  his  own  time  and  his  own  counsel,  and  make  such 
answer  as'he  will,  there. seems  to  be  no  more  danger  of  falsifica- 
tion in  the  one  case  than  in  the  other.^ 

In  Louisiana,  while  the  discretionary  authority  of  the  court  to 
permit  amendments,  where  an  answer  is  really  responsive  to  the 
question,  is  admitted,  it  is  yet  considered  that  an  answer  which  is 
manifestly  evasive  ought  not  to  be  amended,  as  such  a  practice 
might  lead  to  frivolous  delays.^ 

S  6;')1.  IV.  The  Effect  to  he  given  to  the  Garnishee's  Anstver. 
This  depends  in  a  great  measure  on  the  statutory  provisions  of 
each  State.  In  some  States,  the  answer  is  conclusive  ;  in  others, 
it  may  be  controverted.  In  eithe^se,  however,  as  to  all  state- 
ments of  fact,  given  on  the  garnisliee's  personaMcnoN^  fis 
well  as  V77i\\  declarations  of  liis  belieLonactT derived  from 
information,  the  answer  is  taken  to  be  truej ^  in  the  former  class 
of  Statcs,^conclusively  so;  in  tTTe  lattef,  subject  to  be  disproved  by 
competent  evidence. 

§  (Vrl.  In  Massachusetts,  the  garnishee's  liability  lonnerly 
turuL'd  entinjlv  upon  his  answer,  and  evidence  collateral  thereto 
was  not  admitted  :*  and  so  stringent  was  this  rule,  tliat  an  agreed 
statement  of  facts,  signed  by  the  garnishee,  but  not  sworn  to,  and 
submitted  by  the  plaintiff,  defendant,  and  garnishee,  for  the  de- 
cision of  the  court,  as  to  the  liability  of  the  latter,  was  rejected  by 
the  court.5     i,^  the  Revised  Statutes  of  1836,  ch.  109,  §  lo,  tliere 

1  Hovev  r.  Crane.  12  Pick.  167  ;  Carriquc  v.  Sidebottom,  .3  Metcalf.  297  ;  Bufurd  .. 
Wclbom;  6  Alabama,  818;  Xeibon  v.  Scott,  1  Rice's  Dif,'est  of  South  ^^^rolma  Ke- 
nom,  80;  Murrell  c.  Johnson,  3  Hill  (S.  C),  12;  Smith  v.  Brown,  3  Cahlomiu,  118. 
StcMlman  i:  Vickery,  42  Maine,  1.32 ;  Newell  v.  Blair,  7  Michij^an,  103. 

-  Davis  r.  Oakt'ord,  11  I^ouisiana  Annual.  379. 

»  Grossman  v.  Crossman,  21  Pick.  21  ;  Meeker  r.  Sanders,  6  Iowa,  61. 

*  Comstock  r.Famum,  2  Mass.  96;  Stackpole  t;.  Newman,  4  Ibid.  8d  ;  Hawes  v. 
Lanjrton,  8  Pick.  67. 

6  B:nker  f.  Taber,  4  Mass.  81.  r4fin 


§  C54  ANSWER   OF   THE   GARNISHEE.  [CHAP.  XXXDI. 

is  a  slight  modification  of  tlie  strict  rule  whicli  luid  prevailed, 
in  that,  while  it  declares  the  answers  and  statements  ul"  tho 
garnishee  shall  l)e  considered  as  true,  in  deciding  huw  far  lie  is 
chargeahle,  it  allows  either  i)arty  to  allege  and  jn'ove  any  other 
facts,  nut  stated  nor  denied  by  the  (/arnishce,  that  may  be  material  in 
deciding  that  question.^  In  Maine,  and  in  Tennessee,  the  gar- 
nishee's liability  is  determined  solely  by  his  answer.^ 

§  653.  In  most  of  the  other  States  the  answer  is  taken  to  be 
true,  but  is  subject  to  be  controverted  and  disproved.  The 
cfTect  given  to  it  in  this  respect  is,  however,  confined  to  its 
statements  of  facts.  If  the  garnishee  sets  up  rights  or  draws 
conclusions,  arising  out  of  or  resulting  from  the  facts  stated, 
such  rights  and  conclusions  are  necessarily  subject  to  revision  by 
the  coiirt.'^ 

In  Alaljama,  the  answer  is  taken  to  be  strictly  tiue,  and  if  a 
deed  is  appended  to  it,  it  is  to  be  considered  genuine,  unless 
the  answer  be  traversed.*  In  Missouri,^  Illinois,'^  Arkansas,"  and 
Louisiana,*^  the  same  elTect  is  given  to  the  answer  until  it  is  dis- 
proved. 

§  G54.  In  ascertaining  the  eflect  to  be  given  to  an  answer, 
when  assailed  by  opposing  testimony,  but  few  cases  can  be  found. 
In  Illinois,  the  question  came  up,  and  it  was  held,  that  the  answer 
is  not  entitled  to  have  the  same  effect  as  that  of  a  defendant  to  a 
bill  in  chancery,  requiring  the  testimony  of  two  witnesses,  or  what 
luay  be  equivalent,  to  overthrow  it,  but  is  to  l»e  considered  as 
presenting  a  prbna  faeie  defenccy  lial)le  to  l)c  rebutted  I)y  pre- 
ponderating testimony.^  In  Pennsylvania,  where,  under  the  stat- 
ute of  1789,  the  garnishee  was  held  to  be  chargeable  until  hy 

1  Gouch  V.  Tolman,  10  Cushinfr,  104. 

2  Lamb  v.  Franklin  Man.  Co.,  18  Maine,  187  ;  Cheatham  v.  Trotter,  Peck,  198  ;  Child- 
ress V.  Dickins,  8  Ycroer,  11.3. 

s  Lamb  r.  Franklin  Man.  Co.,  18  Maine,  187. 

*  Kobinson  v.  Rapclye,  2  Stewart,  86. 

*  Davis  V.  Knapp,  8  ^Missouri,  657  ;  McEvoy  v.  Lane,  9  Ibid.  48 ;  Stevens  v.  Gwath- 
mcy.  Ibid.  636  ;  Black  v.  Paul,  10  Ibid.  103. 

^  Kcr^in  v.  Dawson,  6  Illinois  (1  Giiinan),  86  ;  Rankin  v.  Simonds,  27  P)id.  352. 
"  Mason  v.  IVIcCanipbell,  2  Arkansas,  506;  Britt  v.  Bradshaw,  18  Ibid.  530. 

*  Oakcy  i\  M.  &  A.  Railroad  Co.,  13  Louisiana,  570;  Blanchard  i-.  Vargas,  18 
Ii)id.  4S6  ;  McDowell  v.  Crook,  10  Louisiana  Annual,  31  ;  Helme  v.  Pollard,  14  P)id. 
306  ;  Barnes  r.  Wayland,  Ibid.  791. 

^  Kcruin  v.  Dawson,  6  Illinois  (1  Gilman),  86. 


CHAP.  XXXm]  ANSWER   OF   THE   GARNISHEE.  §  655 

discharged  himself^  at  least  by  his  own  oatli,  it  was  considered 
that  the  answer  is  prima  facie  sufficient,  but  that  its  truth  might 
be  inquired  into  by  the  jury  ;  and  that  the  plaintiff  makes  out  his 
case  merely  by  destroying  the  effect  of  the  answer,  unless  the 
garnishee  maintains  the  issue  by  other  satisfacTory  evidence  ;  and 
this  the  plaintiff  may  do  by  disi)rovmg  the  malEer  alleged  in  the 
answer,  or  by  showing  the  garnishee  to  be  utterly  unworthy  of 
credit.  On  this  principle,  evidence  which  Msifies  any  fact  asserted 
in  the  answer,  goes  to  the  credibility  of  the  garnishee,  and  is 
therefore  competent.^  In  Mississippi,  it  is  ruled  that  where  the 
truth  of  the  answer  is  denied,  it  cannot  be  read  to  the  jury  im- 
panelled to  try  the  issue.^  If,  however,  upon  sucli  a  trial  the 
plaintiff  reads  tlie  answer  to  the  jury,  it  is  held,  in  Pennsylvania, 
that  it  must  be  taken  as  jjrinid  facie  evidence,  not  requiring  of  the 
garnishee  other  proof  to  establish  it ;  ^  and  in  Alaljama,  that  it 
has  the  effect  only  of  an  admission  of  the  garnishee,  and  is  gov- 
erned by  the  same  rules  as  any  other  admission.*  In  Maryland, 
the  answer  is  regarded  not  as  part  of  the  pleading,  but  as  evi- 
dence, and  if  any  jjart  of  it  be  read  the  whole  must  be ;  as  well 
that  which  discharges  as  that  which  charges  the  garnishee  ;  and 
the  whole  is  to  be  received  as  primd^acie  evidence  of  the  facts 
stated  in  it,  oj)en,  liowev».'r,  to  be  rebutted.^  In  Illinois,  tlie  gar- 
nishee is  entitled  to  have  his  answeTHjcfore  the  jury,  who  may 
give  it  such  weight  as  they  may  l>elievc  it  entitled  to,  in  connection 
with  all  the  circumstances  of  the  case.^  But  in  South  Carolina^ 
and  Alabama^  the  answer  is  not  admissible  evidence  in  the  gar- 
uishee's  favor.     And  so  in  Wisconsin.^ 

§  <^j5.  As  to  the  evidence  which  may  be  given  against  the 
garnishee's  answer,  it  is  held,  in  Missouri,  that  his  admissions  in 
conversation,  either  before  or  after  the  answer  is  sworn  to,  are 
admissible  to  disprove  the  statements  of  the  answer.^"^     In  Massa- 

1  Adlum  V.  Ynrtl,  1  Rawie,  103.  -  Lasley  v.  Sisloff,  7  Howard  (Mi.),  157. 

,•  Erskine  r.  Suii-iston,  7  Watts,  150. 

*  Myatt  r.  Loikhart,  9  Alahama,  91. 

'  Devrics  v.  Buchanan,  10  Marylaml,  210. 
®  Schwab  V.  Gin;:triik,  1.3  Illinois,  C97. 
"  Dawkins  v.  Gaiilt,  5  Richardson,  151. 

*  Myatt  V.  Loekhart,  9  Alal)ania,  91  ;  Price  v.  Mazange,  31   Ihid.   701  ;  Sevier  v. 
Throckmorton,  33  Ihid.  512. 

*  Keep  V.  Sanderson,  12  Wisconsin,  352. 

W  Stevens  v.  Gwathniey,  9  Missouri,  036.     See  Carroll  v.  Finlcy,  26  Barhour,  ei. 

[403] 


§  656  ANSWER   OF   THE   GARSISIIEE.  [cilAP.  XXXIU. 

chusctts,  on  tlie  contrary,  in  tlie  cases  previously  referred  to  ^  it 
was  decided,  that  what  tlie  garnishee  might  have  told  otlior 
persons,  or  said,  on  former  occasions,  is  immaterial,  and  the  gar- 
nishee could  not  l)e  questionet^  in  regard  thereto.  It  is  quite 
certain,  however,  that  declarations  of  the  defendiuit  are  nc^t  ad- 
missihlo  in  evidence  for  the  plaintiff  against  the  garnishee  ;- nor 
arc  admissions  by  an  agent  of  the  garnishee.''  Ikit  whatever 
evidence  may  l)e  given  to  controvert  his  answer,  mu^t  go  to  dis- 
prove the  facts  therein  stated.  It  is  not  admissible  for  the  plaintilT 
to  assail  the  answer  by  impeaching  the  garnishee's  credibility.* 

§  656.  V.  The  Construction  to  he  given  to  the  Garnishee's  An- 
swer. The  necessity  of  fulness  and  cxjdicitncss  in  the  garnish<»e's 
answer,  previously  adverted  to,  is  illustrated  and  enforced  i)y  the 
rule  which  has  obtained  in  ^fassachusetts,  in  relation  to  doubtful 
expressions  contained  in  an  answer.  We  will  trace  the  risc'^nd 
progress  of  this  rule. 

The  matter  came  up  at  an  early  day  in  a  case  where  the 
liability  of  the  garnishee  turned  on  the  point  whether  a  draft 
drawn  on,  and  accepted  by  him,  in  favor  of  the  <lefendant,  was 
negotiable.  If  it  was,  he  could  not,  under  the  statute,  be  charged  ; 
othei^wlsc  he  could.  In  his  answer  he  stated  his  acceptance  of  the 
draft,  and  that  he  thought  it  was  payable  to  the  defendant  or  order. 
"  But,"  said  the  court,  "  he  must  be  posiUye  as  to  this  fact.  11(3 
has  had  time  to  inquire,  and  he  does  not  move  the  court  for  lotivo 
to  make  any  further  declaration  on  this  point.  It"  Ik*,  in  whose 
knowledge  the  fact  ought  to  be,  is  doul)tful,  the  court  cannot 
make  any  presumption  in  his  fiivor."  ^  In  the  next  case  tlie  court 
go  a  step  further,  and  say,  ''  If  the  statement  in  any  part  be 
doubtful,  we  must  construe  it  against  the  trustees,  who  might 
have  used  expressions  in  which  tlicre'^ould  Tje  no  doul»t.'"  '^ 
Again  the  court  say,  "  The  answer  of  a  trustee  being  his  own 
language,  must  unquestionably  in  all  cases  be  construed  most 
strongly  against  himself.  But  his  language  is  not  to  be  distorted 
nor  forced  into  any  unnatural  construction  ;  nor  can  infcrenctjs 
be  drawn  from  any  real  or  supposed  discrepancies  in  his  answers, 

1  Grossman  v.  Grossman,  21  Pick-.  21  ;  Warnerr.  Perkins,  8  Gushing,  518 ;  Ante,  §  643. 

2  Enos  V.  Tuttle,  3  Conn.  27  ;  Gaboon  v.  Ellis,  18  Vermont,  500. 
8  Baltimore  &  Ohio  P.  R.  Go.  v.  Gallahue,  12  Grattan,  655. 

*  Barnes  v.  Wayhuul,  14  Louisiana  Annual,  791. 
^  Sebor  V.  Armstrong,  4  Mass.  206. 

6  Gleveland  v.  Glap,  5  Mass.  201  ;  Sampson  v.  Hvde,  16  New  Iliunp.  492. 
[464] 


CHAP.  XXXIII.]  AXSWER   OF   THE   GARNISHEE.  §  658 

against  the  fair  and  natural  import  of  the  language  taken  alto- 
gether."^ The  rules  laid  down  in  these  cases  were  applied  by 
the  same  court  to  a  case  where  the  question  of  the  garnishee's 
liability  turned  on  a  statement  iu  his  answer  with  regard  to  the 
disposition  made  of  certain  provisions,  the  most  of  which,  he  said, 
had  been  consumed  in  a  particular  way.  If  they  had  all  been 
so  consumed,  the  garnishee  would  not  be  charged  ;  otherwise 
he  might  be.  The  court  adjudged  him  liable,  because  he  did  not 
answer  with  sufficient  precision,  when  it  was  in  his  power  to  have 
done  so.^ 

.Subsequently,  the  rule  was  limited  in  its  application  to  cases 
where  the  garnishee,  in  some  parTofhis  answer,  makes  statements, 
which,  une.Kplained,  would  prima  fade  subject  him  to  liability.' 
The  la.st  case  cited  seems  to  be  one  of  this  character.  There,  the 
garnishee  was  primd  facie  liable,  and  endeavored  to  avoid  liability 
by  a  statement  concerning  the  provisions  in  his  hands.  That 
statement  being  deficient  in  precision  and  fulness,  the  court  would 
not  receive  it  as  a  protection  against  the  primd  facie  liability 
appearing  by  the  answer. 

§  6')7.  In  Louisiana,  a  statutory  provision  exists,  declaring  that 
a  -garnishee's  "  refusal  or  neglect  to  answer  interrogatories  shall 
be  con.sidered  as  a  confes.<ion  of  his  having  in  his  hands  property 
belonging  to  the  debtor,  sufficient  to  satisfy  the  demand  made 
against  the  debtor."  Under  this  provision  this  question  was  put 
to  the  garni.shee :  "  Have  you  received  cotton  or  other  i)roduce 
from  the  defendants  or  from  any  member  of  the  firm  ?  At  what 
time  ?  How  much  cotton  or  produce  ?  "  The  garnishee  answered, 
"  that  he  had  received  cotton  from  the  defendants,  for  account  of 
other  persons,  which  had  been  duly  appropriated  according  to 
directions  received  with  said  cotton,  pre^^ous  to  the  service  of 
the  attachment  or  garnishment  in  this  case."  The  answer  was 
held  to  be  ev(^e,  and  not  responsive  to  the  question,  and  the 
garnishee  was  charged.* 

§  658.   This  subject  elicited  from  the  late  Justice  Story  the 

1  Kelly  r.  Bowman,  12  Pick.  38-3;  United  States  r.  Lanfrton,  5  Mason,  280;  Gid- 
dings  r.  Coleman,  12  New  Hamp.  153  ;  Sampson  v.  Hyde,  16  Ibid.  492 ;  Scott  v.  Ray, 
18  Pick.  360  ;  Ormsbec  v.  Davis,  5  Rhode  Island,  442. 

■^  Graves  v.  Walker,  21  Pick.  160. 

«  Shearer  v.  Handv,  22  Pick.  417.  *  Hart  v.  Dahlgroen,  16  Louisiana,  559. 

30  [465] 


§  658  ANSWT^R   OF   THE   GARNISHEE.  [CHAP.  XXXHI. 

followiiij^-  judicious  remarks,  which,  though  apphcahlc  to  the  pe- 
culiar system  of  Muiue,  will  be  regarded  favoraVdy  in  all  cases 
where  the  questiou  of  the  garnishee's  liability  is  to  be  decided  by 
the  terms  of  his  answer.  "It -is  said  that  where  parties,  sum- 
moned as  trustees,  fail  to  discharge  themselves,  by  any  ambiguity 
in  their  disclosures,  they  are  to  be  adjudged  trustees.  That  propo- 
sition requires  many  qualifications,  and  may  be  true  or  not,  ac- 
cording to  circumstances.  If  upon  the  disclosure  it  is  clear  that 
there  are  goods,  effects,  or  credits  of  the  debtor  in  the  hands  of  a 
trustee,  but  it  is  left  uncertain  by  the  disclosure  whether  tlie 
goods,  effects,  or  credits  are  affected  by  interests,  liens,  or  claims 
of  third  persons  oi-  not,  and  the  trustee  has  knowledge  of  all  the 
facts,  and  withholds  them,  or  evades  a  full  examination  ;  that 
may  furnish  a  good  ground  to  presume  everytliing  against  him, 
so  far  as  there  are  ambiguities.  But  if  he  fully  and  clearly 
discloses  all  he  knows,  and  upon  the  whole  evidence  it  is  left  in 
reasonable  doubt  whether,  under  all  the  circumstances,  he  be 
trustee  or  not ;  in  such  case,  I  apprehend,  he  is  entitled  to  be 
discharged.  A  different  doctrine  would  be  most  perilous  to  the 
supposed  trustee  ;  because  he  possesses  no  power  to  compel  dis- 
closures from  tliird  persons  relative  to  the  property  ;  and  no  ex- 
traneous or  collateral  evidence  of  third  j)ersons  is  admissible*  in 
the  suit,  to  establish  or  discharge  his  liability.  It  is  to  be  decided 
solely  and  exclusively  by  his  answer.  He  might,  upon  any  other 
doctrine,  be  innocently  compelled  to  pay  over  the  same  pro{x;rty 
twice  to  different  persons  holding  adverse  rights,  because  he 
might  be  without  any  adequate  means  of  self-protection.  The 
law,  therefore,  will  not  adjudge  him  a  trustee,  except  upon  clear 
and  determinate  evidence  drawn  from  his  own  answers."  ^  In 
another  case  the  same  eminent  jurist  said :  "  I  agree  that  doubtful 
expressions  may  be  construed  most  strongly  against  the  trustees, 
if  they  admit  of  two  interpretations  ;  but  they  are  not  to  be 
tortured  into  an  adverse  meaning  or  admission.  Tlie  answers 
are  not  to  be  more  rigidly,  or  differently  construed  from  what 
they  would  be  in  a  bill  in  chancery.  If  the  answers  are  not  full, 
the  plaintiff  is  at  liberty  to  propound  closer  interrogatories ;  but 
he  is  not  to  charge  parties  upon  a  mere  slip  or  mistake  of  cer- 
tainty, or  because  they  do  not  positively  answer,  what  in  conscience 
they  do  not  positively  know."  ^ 

1  Gordon  v.  Coolidge,  1  Sumner,  537.      ^  United  States  v.  Langton,  5  Mason,  280. 
[466"! 


CHAP.  XXXIV.]        JUDGMENT   AGAINST   THE   GARNISHEE.  §  658  a 

CHAPTER    XXXIV. 

JUDGMENT   AGAINST  THE  GARNISHEE. 

§  658  a.   "NVe  have  seen  that  an  indispensable  prerequisite  to  a 
judgment  against  the  garnishee  is  the  rendition  of  a  judgment 
against  the  defendant.^     There  is  no  doubt  that  that  fact  should 
be  shown  in  the'record  ;  else  the  judgment  against  the  garnisliue 
will  appear  witliout  foundation.^     But  the  question  arises,  What 
constitutes  the  record  in  a  garnishment  proceeding  ?  and  this  de- 
pcnd.s  upon  the  manner  in  which   that  proceeding  is  instituted. 
If  the  garnishee  is  sunnnoned  under  an  attachment,  the  true  view 
seems  to  be,  that  the  garnishment,  though  in  some  sense  a  distinct 
suit,  belongs  to,  and  is  a  part  of,  the  record  in  tlie  attachment  suit.^ 
But  there  are  two  other  modes  in  which  garnisliees  nray  be  sum- 
moned in  courts  of  law,  viz. :  1.  By  statutory  proceeding  under 
a  judgment,  but  not  under  an  execution  on  the  judgnuMit ;  and 
2.  By  a  statutory  proceeding  under  an  execution,     in  the  former, 
there  is  necessarily  some  step  to  be  taken  by  the  judgment  plaintiff, 
to  initiate  the  garnishment;  in  the  latter,  there  is  generally  noth- 
ing required  l»ut  the  issue  of  an  execution,  under  which  garnishees 
may  be  sunnnoned,  as  under  an  attachment.     In  the  latter  form 
of  proceeding,  the  record  of  the  case  against  the  garnishee  is  the 
execution,  the  return  of  the  officer  thereon,  the  interrogatories  to, 
and  answer  of,  the  garnishee,  and  the  judgment ;  and  in  such  a 
record  the  ttalc'aiid  amount  of  the  judgment  against  the  defendant 
necessarily  and  sufficiently  appear  by  the  execution.     But  in  the 
other  case,  how  is  the  fact  of  the  rendition  of  the  judgment,  or 
the  amount  thereof,  to  appear  ?     In  Alabama,  in  such  case,  it  is 
necessary  for  the  judgment  plaintiff,  in  order  "  to  obtain  process 
of  garnishment  against  any  person  supposed  to  be  indebted  to  the 
defendant,  in  any  cause  ivhere  execution  cannot  issue  on  the  judgment, 

1  Ante,  §  460. 

2  Zurcher  v.  Magee,  2  Alahama,  25.3;  Blair  v.  Rhodes,  5  Ibid.  618;  Case  v.  Moore, 
21  Iliid.  758;  Bean  r.  Barney,  10  Iowa,  498;  Toll  v.  Kni-lit,  15  Ibid.  370. 

3  Walker,  J.,  in  FauHcs  i-.  Heard,  31  Alabama,  516.  In  Uankin  v.  Simonds,  27  Illi- 
nois, 352,  it  was  held,  that  the  interrogatories  to,  and  answer  of,  the  garnishee  are  part 
of  the  record,  and  need  not  be  preserved  by  a  bill  of  exceptions. 

[4G7J 


§  G58  h  JUDGMENT   AGAINST   THE   GARNISHEE.        [CHAP.  XXXIV. 

to  inako  affiilav  it  that  sucli  jjcrson  is  supposed  to  be  indebted  to,  or 
have  efTeets  of  tlie  defendant  in  his  possession  or  under  his  control, 
and  that  lie  believes  process  of  garnishment  against  such  person 
is  necessary  to  obtain  satisfaction  of  such  judgment."  The  record 
in  such  a  case  wuuld  consist  of  the  afhdavit  and  sununons,  tho 
return  of  the  officer,  and  tiie  interrogatories,  answer,  and  judg- 
ment in  th»>  garnishment  j)roceeding.  The  judgment  against  tho 
defendant  is,  properly  speaking,  no  portion  of  the  record,  unless 
incorporated  into  the  judgment  against  the  garnishee,  or  mado 
part  of  the  record  by  a  bill  of  excepHonsT"  Iiideed^  it  was  held, 
that  a  judgment  against  the  garnishee  in  such  a  proceeding  was 
fatally  defective,  because  it  did  not  recite  the  amount  of  the  judg- 
ment against  the  defendant;^  but  this,  pcrhaj)s,  is  more  strict 
than  necessary.  It  should  be  enough  if,  in  any  way,  in  the  record 
of  the  garnisliment  proceeding,  the  amount  of  that  judgment  aj>- 
pears.  And  tirTs  was  the  view  taken  by  the  Supremo  Court  of 
Alabama,  where  the  affidavit  set  forth  the  date  and  amount  of  tho 
judgment  agahist  the  defendant,  and  the  judgment  entry  against 
the  garnishee  recited  that  he  waived  ol»jection  to  the  rendition  of 
a  judgment  against  him,  because  of  its  not  appearing,  as  required 
by  the  terms  of  the  statute  above  (pioted,  (hat  no  execution  could 
issue  on  the  Judgment  against  the  defendant.  The  court  held,  that 
his  admission,  contained  in  this  waiver  and  his  answer,  was  an 
admission  of  the  existence  of  the  judgnient  descril»ed  in  the  affi- 
davit, and  was  sufficient  proof,  as  against  him,  of  that  fact.^  IJut 
where,  in  such  a  proceeding,  the  affidavit  did  not  show  the  amount 
of  the  judj^ent  against  the  defendant,  it  was  held,  that  any  judg- 
ment against  the  garnishee  was  erroneous.* 

§  658  b.  It  is  not  necessary,  unless  required  by  statute,  that 
the  judgment  against  the  garniskee  should  be  taken  at  thejjine 
of  that  against  the  defendant.  "Forbearance  of  the  plaintilf  to 
take  it  then,  is  no  waiver  of  his  right  to  do  so  afterward,^  In 
Alabama  it  is  held,  that  when  a  garnishee  submits  to  answer,  ho 
continues  before  the  court,  for  the  purpose  of  receiving  its  jiidg 
ment  upon  his  answer,  until  after  judgment  shall  have  been  ren 

1  Gunn  V.  Howell,  27  Alabama,  663;  Faulks  v.  Heard,  31  Ibid.  516. 
^  Faulks  V.  Heard,  31  Alabama,  516. 
^  Jackson  v.  Shipman,  28  Alabama,  488. 

*  Stickley  i;.  Little,  29  Illinois,  315.  • 

*  Sturi^es  V.  Kendall,  2  Louisiana  Annual,  565. 

[468] 


CHAP.  XXXI v.]        JUDGMENT   AGAINST   THE   GARNISHEE.  §  658  d 

dered  against  the  defendant ;  ^  and  that  judgment  may  be  rendered 
against  the  garnishee  at  a  term^  subsemjent  to  that  at  which  it  was 
given  against  the  defendant ;  -  and  that  in  such  case,  the  garnishee 
is  not  e^itilled  to  notice  of  the  motion  for  the  Judgment.^  And  in 
Louisiana,  in  a  case  where  the  garnishee's  answer  had  been  suf- 
fered to  remain  six  years  without  any  pj^occcding  ujioii  it,  it  was 
not  regarded  as  releasnig  the  garnishee  from  the  jurisdiction  of 
the  court,  but,  coupled  witli  otluiJL-iijcts,  as  having  great  weight 
with  the  court  in  relieving  him  against  any  proceedings  which 
might  be  liard  or  precipitate  against  him.* 

§  (358  c.  When  in  an  attachment  suit,  tlie  question  arises  whether 
there  shall  be  a  judgment  against  the  garnishee,  the  case  is  ordina- 
rily between  him  and  the  plajntiff  alone  ;J  but  the  defendant  is  not 
wholly  cut  off  from  interfering  to  prevent  the  judgment.  If  his 
property  in  the  garnishee's  liands  is  by  law  exemjtt  from  execution, 
or  if  the  debt  due  from  tlie  garnishee  to  him  be  such  as  the  law 
forindij  being  reached  by  garnishment,  or  if  the  judgment  against 
th«;  defendant  has  In-en  satisfied  ;  he  may  inter|)ose  to  prevent  a 
judgment  against  the  garnishee.  But  he  cannot  do  so  to  set  up, 
on  belialf  of  the  latter,  amersonal  exemption /from  garnishment : 
this  can  be  done  cmly  by  the  garnishee.  Tbus,  where  an  incorpo- 
rated city  was  garnished,  and  the  defendant  attempted  to  interpose 
the  objection  that  a  municipal  corporation  could  not  be  held  as 
garnishee,  it  was  decided  that  he  had  no  right  to  do  so.^ 

§  658  d.  Xothing  is  more  import«ant  in  the  taking  of  a  judgment 
against  a  garnishee,  than  that  he  should  have  a  fairji^jiring  before 
the  court  on  the  (piestion  of  his  liability.  If  that  be  denied  him, 
the  judgment  against  him  will  lie  reversed  by  tbe  revising  tri- 
bunal. Thus,  where  a  garnishee,  on  an  examination  before  a 
commissioner,  refused  to  answer  a  certain  interrogatory,  on  the 
ground  that  it  was  impertinent,  and  the  question  was  submitted 

'  Graveii  r.  Cooper,  8  Alabama,  811  ;  Lockbart  v.  Johnson,  9  Ibid.  223 ;  Bostwick  v. 
Bench,  18  Ibid.  80. 

■•'  Leiiih  r.  Smith,  5  Alabama,  58.3 ;  Robinson  r.  Starr,  .3  Stewart,  90. 

*  lje\i:h  V.  Smith,  5  Alabama,  583. 

♦  SlattiT  c.  Tit-man,  6  Louisiana  Annual,  .567.  The  failure  of  an  att.achinpr  plaintiff, 
for  many  years,  to  prosecute  a  sramisbinent  proceeding  to  juil;rment  ap»in>t  the  jrar- 
nisbee,  and  the  intcr\-enin;;  insolvency  of  the  camishec,  do  not  dej>rive  the  plaintiff  of 
his  riirht  to  prosecute  his  claim  against  the  defendant  to  judfj-ment.  Noble  c.  Merrill, 
48  Maine,  UO. 

'  Wales  V.  Muscatine,  4  Iowa,  .302;  Burton  r.  District  Township,  11  Iliid.  166. 

[4G'J] 


§  6.38  e  JUDGMENT   AGAINST   TIIK   GARNISHEK.       [cHAP.  XXXIV 

to  tlie  court  wlietlicr  he  was  legally  l)oiind_to^  answer,  and  the 
court  decided  that  he  was,  but  refused  JOL_ue»'iiiit  him,  though  he 
oflTered  to  do  so,  and  rendcredjudgment  against  him ;  the  judg- 
ment was  reversed,  on  the  ground  that  it  was  the  duty  of  tlie  court 
either  to  have  recommitted  the  whole  matter  to  the  commissioner 
for  further  hivestigation,  or  to  have  taken  the  answer  in  open  court.* 

J^§  658  e.  In  many  States,  a  judgment  hy  default  may  he  taken 
J)  against  a  garnishee  \\\)(n\  his  failing  to  answer.  If  he  permit  such 
a  judgment,  when  in  fact  he  ought  not  to  be  charged,  because  not 
a  debtor  to,  or  holding  any  effects  of,  the  defendant,  he  is  primd 
facie  guilty  of  negligence,  and  can  ol)tain  no  relief,  unless,  by  re- 
butting the  presumption  of  negligence,  he  can  induce  the  court  to 
set  asid^  the  jud<mient,  and  give  him  leave  to_ans\]^er.  It  is  not 
such  a  case  as  a  court  of  equity  will  interfere  in,  though  he  show 
that  the  judgment  is  inequitable.  To  entitle  himself  to  eiiuitable 
relief,  he  must  not  only  show  that  injustice  has  been  done  him  by 
the  judgment,  but  that  the  judgment  was  obtained  without  any 
fault  or  neglect  on  his  part.^ 

"When  a  garnishee  in  default  comes  into  court,  seeking  to  be  al- 
lowed to  answer,  the  default  will  not  be  set  aside  unless  he  show 
a  sufficient  excuse  for  his  delinquency  in  not  appearing  and  an- 
swering at  the  proper  time.  He  cannot  carelessly  or  obstinately 
fail  to  appear  when  required,  and  afterwards  come  in  and  enter 
his  appearance,  with  all  the  rights  and  privileges  of  one  who  has 
been  diligent  in  responding  in  the  first  instance.  A  negligent 
garnishee  is  no  more  entitled  to  protection  than  any  other  negli- 
gent party.''  And  he  is  as  much  bound  to  look  after  tlie  proceed- 
ings against  him,  and  protect  himself  from  an  improper  judgment, 
as  a  defendant  in  an  ordinary  suit  is.  If,  by  his  failure  in  this 
respect,  the  plaintiff  gain  an  advantage  over  him,  he  is  without 
relief.  Thus,  where  a  garnishee  answered,  denying  indebtedness 
to  the  defendant,  and  afterwards  the  case  was  taken  by  change  of 
venue  to  another  county,  where  the  plaintiff  filed  a  replication  to 
the  aiiswer  taking  issue  jtliereon,  of  which  no  notice  was  given 
to  the  garnishee,  and  upon  a  trial  a  verdict  was  found  against  the 

^  Sawyer  v.  "Webb,  5  Iowa,  315. 

■^  Hair  V.  Lowe,  19  Alabama,  224  ;  Peters  v.  Leao;ue,  13  IVIarvland,  58  ;  "Wimlnnrt  i'. 
Allen,  Ibid.  196 ;  Atlantic  F.  &  M.  Ins.  Co.  v.  "Wilson,  5  Rhode  Island,  479 ;  Rhode 
Island  Ex.  Bank  v.  Hawkins,  6  Ibid.  198. 

3  FiHeld  r.  "Wood,  9  Iowa,  250 ;  Parmenter  v.  ChildSj  12  Ibid.  22. 
[470]        . 


CHAP  XXX IV.]   JUDGMENT  AGAIXST  THE  GARNISHEE.  §  659 

garnishee,  which  he  moved  to  set  aside ;  it  was  held,  that  it  was 
his  duty  to  take  notice  of  what  was  done  in  the  case,  the  same  as 
any  other  party,  and  to  follow  the  case ;  and  being  in  default  in 
this  respect,  the  judgment  against  him  could  not  be  set  aside.^ 

In  Louisiana,  if  a  garnishee  fails  to  answer  the  interrogatories 
propounded  to  him,  the  court  orders  them  to  be  taken  for  con- 
fessed ;  and  under  this  system  of  practice  it  was  held,  that  such 
an  order  might,  in  the  sound  discretion  of  the  court,  be  set  aside, 
and  the  garnishee  be  allowed  to  answer,  where  the  order  was  made 
5</(yrf  judgment  was  obtained  against  the  defendant;  inasmuch  as, 
until  that  event,  the  taking  of  the  interrogatories  for  confessed 
could  be  of  no  benefit  to  the  plaintiff.^ 

§  Go9.  Where  the  garnishee's  liability  is  to  be  determined  by 
his  answer,  either  because  it  is  by  law  conclusive,  or  because  the 
plaintiff  does  not  see  proper  to  controvert  its  statements,  the  rules 
governing  the  judgment  to  be  rendered  thereon  are  few  and  simple. 
They  may  be  briefly  stated  thus : 

1.  In  order  to  charge  the  garnishee  on  his  answer,  there  must 
be  in  it  a  clear  admission  of  a  debt. due  to,  or  the  possession  of 
money  or  other  attachable  property  of,  the  defendant.^ 

2.  Where  tliere  is  not  an  explicit  admission  of  a  debt,  but,  from 
the  statements  of  the  answer,  indebtedness  to,  or  the  possession 
of  attachaljle  property  of,  the  defendant,  clearly  appears,  judgment 
should  go  against  the  garnishee.* 

3.  If  there  be  a  debt  due  from  the  garnishee,  or  money  in  his 
hands,  the  amount  of  either  will  determine  the  extent  of  the  gar- 
nishee's lialiility  ;  not  exceeding  in  any  case  the  auKjunt  for  which 
the  plaintitr  recovers  judgment  against  the  defendant.^ 

1  Clia»e  r.  Foster,  9  Iowa,  429. 

*  Rose  V.  Wlialc_v,  14  Louisiana  Annual,  374. 

*  Wi'tiR'rill  V.  Flanajran,  2  Miles,  24.3  ;  Bridges  v.  North,  22  Georgia,  52;  Allen  w. 
Morgan,  1  Stewart,  9;  Pressnali  v.  Mabry,  3  Porter,  105;  Smith  r.  Cliapniaii,  6  Ibid. 
365 ;  Minis  c.  Parker,  1  Alabama,  421  ;  Foster  v.  Walker,  2  Ibid.  177  ;  Fortune  v.  State 
Bank,  4  Ibid.  ."585;  Connoley  v.  Cheesel>orough,  21  Ibid.  166;  Powell  v.  Sammons,  31 
Ibid.  552;  Estill  i'.  Goodloe,  6  Louisiana  Annual,  122;  Harney  v.  Ellis,  11  Smedes  & 
Marshall,  .348  ;  Brown  r.  Slate,  7  Humphreys,  112  ;  Davis  v.  Pawlette,  3  Wisconsin,  300; 
Wilson  V.  Albright,  2  G.  Greene,  125;  Pierce  v.  Carleton,  12  Illinois,  358;  People  v. 
Johnson,  14  Ibid.  342;  EUicott  r.  Smith,  2  Cranch,  C.  C.  543;  Porter  v.  Stevens,  9 
Gushing,  5.30;  Lomerson  v.  Hutfman,  1  Dutcher,  625  ;  Williams  v.  Ilousel,  2  Iowa,  151 ; 
Hunt  V.  Coon,  9  Indiana,  537  ;  Reagan  v.  Pacific  Railroad,  21  Missouri,  30 ;  DriscoU 
V.  Hoyt,  1 1  Gray,  404 ;  Smith  v.  Clarke,  9  Iowa,  241. 

*  Baker  i-.  Moody,  1  Alabama,  315;  Mann  r.  Buford,  3  Ibid.  312. 

*  Hitchcock  V.  Watson,  18  Illinois,  289;    Talbott  v.  Tarlton,  5  J.  J.  Marshall,  641 ; 

[471] 


§  Go9  JUDGMENT   AGAINST   THE   GARNISHEE.        [CHAP.  XXXIV. 

4.  If  the  garnishee  have  jn'operty  other  than  moiM'y,  or  have 
rendered  serviees  for  the  defendant,  the  ^;alue  thereof  must  appear 
in  the  answer,  or  there  can  be  no  judgment  for  the  plaintiff  on  the 
answer ;  for  there  is  nothing  from  whieh  tlie  court  could  find  a 
definite  amount.^ 

5.  Where  the  garnishee  denies  being  indebted  to,  or  having  in 
his  possession  attachable  property  of,  the  defendant ;  or  his  answer, 
though  vague  and  inartifieially  drawn,  contains  substantially  a  do- 
liial  thereof,  judgment  must  be  rendered  in  his  favor,  unless,  from 
the  statements  of  the  answer,  it  appear  that  the  denial  is_iiiiJxiLe ; 
in  whieh  case  the  denial  will  be  disregarded  and  judgment  ren- 
dered against  him. 2 

G.  Where  he  neither  expressly  admits  nor  denies  his  liability, 
but  states  all  the  facts,  and  leaves  the  court  to  decide  tiie  matter 
of  law  arising  thereon,  there  can  be  no  judgment  against  him, 
unless  there  clearly  appear  on  the  face  of  those_Jiicts  sufficient 
to  justify  the  court  in  pronouncing  such  judgment.-^  If  it  be  left 
in  reasonable  tlouljt  whether  he  is  chargeable  or  not,  he  is  entitled 
to  a  judgment  in  his  favor.'* 

7.  Where  the  answer  of  the  garnishee  discloses  circumstance? 
which  raise  a  question  of  fraud  in  the  title  to  property  in  hit 
hands,  the  court  will  not  take  cognizance  of,  and  decide  that 
question  on  the  answer  alone,  it  being  a  question  which  should  be 
referred  to  a,  jury.' 

Wilcox  V.  Mills,  4  Mass.  218;  Sanfonl  r.  Bliss,  12  Pick.  116;  Mcacham  v.  McCorbitt, 
2  .Metcair,  .3.52;   Allen  r.  Hall,  5  Ibid.  2G3 ;    Brown  v.  Silsby,  10  New  llan)]..  .521. 

^  Bian  t\  Bean,  3.3  New  I  lamp.  279. 

2  Wii^'bt  !'.  Foonl,  5  New  llanip.  178;  Ferine  v.  George,  5  Alabama,  644;  Jones 
p.  Howell,  16  Ibid.  695;  Smith  c.  Bruncr,  23  Mississippi,  508;  Bebb  v.  Preston,  1 
Iowa,  460. 

^  United  States  v.  Lanijton,  5  Mason,  280 ;  Picquet  v.  Swan,  4  Mason,  44.3  ;  Rieh  v. 
Reed,  22  Maine,  28 ;  Oliver  v.  Atkinson,  2  Porter,  546 ;  Frost  v.  Patrick,  3  Smedes  & 
Marshall,  783. 

*  Gordon  r.  Coolidge,  1  Sumner,  537  ;  Pierce  v.  Carleton,  12  Illinois,  358,  Banning 
V.  Sibley,  3  Minnesota,  389  ;  Pioneer  Printing  Co.  v.  Sanborn,  Ibid.  413. 

6  Rich  V.  Reed,  22  Maine,  28. 

r4721 


CHAP.  XXXV.]  EXTENT   OF   GARNISHEE'S  LIABIUTY.  §  662 


CHAPTER   XXXV. 

EXTENT   OP   garnishee's    LIABILITY   AS   TO    AMOUNT,   AND   AS  TO   THE 
TLME   TO    which   THE   GARNISHMENT   RELATES. 

§  000.  As  an  attaching  creditor  can  acquire,  through  th&  at- 
tachment, no  greater  rights  against  the  garnishee  than  the  de- 
fendant has,  except  in  cases  of  fraud,  it  follows  that  the  extent 
of  the  garnishee's  liahility  is  to  be  determined  Ijy  the  value  of  the 
defendant's  property  in  his  hands,  or  the  amount  of  the  debt  due 
from  him  to  the  defendant.^  The  garnishee  is  a  mere  stakeholder 
between  the  parties,  and  it  would  be  manifestly  unjust,  as  long 
as  he  holds  that  position,  to  suliject  him  to  a  judgment  for  a 
greatQr  amount  than  that  in  his  hands.  Where,  therefore,  a 
person  is  summoned  as  garnishee  in  several  actions,  and  discloses 
in  any  one  of  them  that  judgment  has  been  rendered  against 
him  in  a  prior  case  for  the  whole  amount  in  his  hands,  he  will 
be  discharged,  unless  the  plaintiff  in  tfie  prior  suit  can  make  his 
debt  otherwise  than  by  recourse  to  the  garnishee.^ 

§  601.  It  is  a  recognized  right  of  a  garnishee  to  discharge 
himself  from  personal  liability,  by  delivering  into  court  the  proi> 
erty  of  tlie  defendant  which  is  in  his  hands.  In  such  case,  the 
property  is  wholly  within  the  control  of  the  court,  and  the  gar- 
iiisheo  is  relieved  from  all  responsibility  therefor,  and  is  not  con- 
sidered as  having  any  further  connection  with  or  concern  in  the 
proceedings.  It  was,  therefore,  held,  that  under  such  circum- 
stances he  could  not  prosecute  a  writ  of  error  to  a  decision  of  the 
court  disix)sing  of  the  property .^ 

§  002.  The  garnishee  will  not,  where  he  does  not  assume  the 
attitude  of  a  litigant,  be  chargeal)le  with  the  costs  of  the  pro- 
ceedings against  him,  or  of  those  against  the  defendant,  unless 
it  appear  that  he  has  sufficient  in  his  hands  for  that  purpose, 

1  Ta»K)tt  V.  Tarlton,  5  J.  J.  Marshall,  641  ;  Wilcox  v.  Mills,  4  Mass.  218  ;  Sanford 
V.  Bliss,  12  Pick.  116;  Mcacham  v.  McCorbitt,  2  Metcalf,  352;  AUcn  v.  Hall,  5  Ibid. 
263 ;  Brown  v.  Silsbv,  10  New  Hamp.  521. 

2  Bullard  v.  Ilicks,  17  Vermont,  198.  See  Robeson  v.  M.  &  A.  Railroad  Co.,  13 
Louisiana,  465. 

»  Lewis  V.  Sheffield,  1  Alabama,  134. 

[473] 


§  004  EXTKNT    OF   (JARXISiltli'/S   LIABILITY.  [cHAr.  XXXV. 

after  satislyiiig  the  debt.^  But  if  he  denies  indebtedness,  and 
an  issue  is  formed  to  try  the  fact,  the  proceedings  assume  all  tho 
nature  and  formalities  of  a  suit  between  the  plaintilf  and  tho 
garnishee,  and  all  tho  consequences  of  a  suit  attend  these  pro- 
ceedings. It  is  no  longer  a  case  in  which  the  garnishee  merely 
complies  with  the  process  of  the  court,  occupying  more  tho 
character  of  a  witness  than  a  party  ;  but  he  is,  to  every  intent, 
a  pal'ty  ;  and  may  summon  witnesses,  ol)tain  continuances,  ttc, 
and  swell  the  costs  as  much  as  the  defendant  could  have  done. 
In  such  a  case,  if  tho  issue  bo  found  against  him,  he  is  liable 
to  a  judgment  for  tho  costs  whicli  have  accrued  on  the  garnish- 
ment proceedings,  though  there  bo  no  statute  on  the  sulyect.^ 
And  so,  if  the  garnishee  refuses  to  answer,  or  seeks  to  avoid  a  fair 
investigation  of  liis  liability,  ho  is  chargeable  with  any  costs 
occasioned  by  such  conduct.^  And  so,  if  the  amount  <lue  from 
him  to  the  defendant  be  in  controversy,  and  the  plaintitV  e>t4blish 
that  there  is  more  in  the  garnishee's  hands  than  lie  admitted. 
But  if  the  garnishee's  admission  be  sustained,  he  is  not  liable  for 
costs.^ 

§  003.  Whatever  the  amount  of  tho  garnishee's  indebtedness 
to  the  defendant,  or  of  the  defendant's  cHects  in  his  hands,  over 
and  above  that  of  the  plaintilV's  judgment  against  tlie  latter,  no 
judgment  can  be  taken  against  him  for  more  than  sufTicient  to 
cover  the  plaintilT's  claim  against  the  defendant  and  costs.^  And 
as  the  judgment  against  him  is  only  intended  to  secure  tho 
satisfaction  of  that  against  the  defendant,  if  the  plaintitT  ol)tain 
satisfaction  in  part  by  other  means,  he  can  proceed  against  tho 
garnishee  only  for  the  unsatisfied  remainder  ;  and  if  he  obtain 
satisfaction  in  full,  his  recourse  against  tlie  latter  is  at  an  end.*^ 

§  004.   In  this  connection  may  properly  be  considered  the  gar- 

1  Gracy  v.  Coatcs,  2  McCord,  224;  Walker  v.  Wallace,  2  Dallas,  113;  Witherspoon 
V.  Barber,  3  Stewart,  335 ;  Breadinjj  v.  Sicgworth,  29  l\nn.  State,  396. 

2  Thompson  v.  Allen,  4  Stewart  &  Porter,  184 ;  iS'ewlin  v.  Scott,  26  Penn.  State,  102 ; 
Breadinj;  v.  Siegworth,  29  Ibid.  396. 

3  Randolph  v.  Heaslip,  11  Iowa,  37. 

*  Newlin  v.  Scott,  26  Penn.  State,  102 ;  Breading  v.  Siegworth,  29  Ibid.  396. 

5  Tyler  v.  Winslow,  46  Maine,  348  ;  ilitcluock  v.  Watson,  18  Illinois,  289 ;  Doggett 
V.  St.  Louis  M.  &  F.  Ins.  Co.,  19  Missouri,  201  ;  Timmons  v.  Johnson,  15  Iowa,  23. 

^  Spring  I'.  Aycr,  23  Vermont,  516;  Thompson  r.  Wallace,  3  Alabama,  132;  Price 
V.  Higgins,  1  Littell,  274. 
[474] 


CHAP.  XXXV.]  EXTENT    OF   G.UINISHEE'S   LIABILITY.  §  665 

nishee's  liability  for  interest  on  his  debt  to  the  defendant,  pendente 
lite.  If  he  lias  put  the  defendant's  money  at  interest,  he  is  liable 
for  the  interest.^  And  where  the  plaintitf  attaches  in  his  own 
hands  a  debt  he  owes  to  the  defendant,  it  has  been  held,  that 
interest  thereon  continues  to  run  during  the  pendency  of  the 
attachment.^  But  where  a  third  person  is  subjected  to  garnish- 
ment, wliethcr  he  shall  be  required  to  pay  interest  on  his  debt 
during  the  time  he  is  restrained  by  the  attachment  from  paying 
the  debt,  is  a  matter  which  has  been  much  discussed. 

§  66").  In  deciding  this  question,  the  first  point  to  be  inquired 
into  in  any  case  is,  whether  the  garnishee's  debt  to  the  defendant 
is  one  bearing  interest  by  agreement,  or  whether  the  interest  for 
which  it  is  sought  to  cliarge  him  accrues  by  way  of  damages. 
If  there  was  no  contract  of  the  garnishee  to  pay  interest,  he 
camiot  l)e  diarged  with  it ;  for  tlie  plaintiff  can  hold  him  for  no 
more  than  the  defendant  eould.^  If  the  interest  accrues  by  way 
of  damages  for  a  wrongful  detention  of  the  principal  sum  by 
the  debtor,  he  cannot  1)0  charged  with  it,  because  having  beeu 
restrained  by  the  garnishment  from  paying  his  debt,  he  is  in  no 
fault  for  not  paying,  and  there  is  therefore  no  wrongful  detention, 
and  therefore  no  liability  fur  damages.*  But  where  the  garnishee's 
del»t  is  one  which  by  contract  bears  interest,  the  latter  is  as  much 
a  part  of  the  debt  as  the  principal  ;  and  it  is  in  reference  to  such 
cases  that  tbe  question  uf  the  garnishee's  liability  for  interest 
has  most  frequently  arisen.  Concerning  this  point,  it  may  bo 
laid  down  jus  a  general  proposition,  that  a  garnishee  ought  not 
to  be  charged  with  interest  on  his  debt  to  the  defendant,  while  he 
is,  by  the  legal  operation  of  an  attachment,  restrained  from  making 
payment:^  whether  the  attachment  terminates  in  favor  of  the 
plaintiff  or  the  defendant.**  This  apfjlies,  however,  only  to  cases 
where  the  garnisliee  stands  in  all  respects  rectus  in  curia,  as  a 

»  Brown  r.  Silshy,  10  New  Hainp.  521  ;  Blodgctl  v.  Gardiner,  45  Maine,  542. 

*  Willing;  v.  Conse-iua.  Peters  C.  C.  301. 

»  Lyman  v.  Urr,  26  Vermont,  119;  Adams  v.  Cordis,  8  Pick.  260;  Quigg  v.  Kit- 
trcdge,  18  New  Ilamp.  137. 

*  Prescott  v.  Parker,  4  Mass.  170;  Adams  v.  Cordis,  8  Pick.  260;  Swamscott  Ma- 
chine Co.  r.  Partridge,  5  Foster,  369  ;  Irwin  v.  Pittsburg  &  C.  R.  R.  Co.,  43  Penn. 
State,  488. 

'"  Fitzgerald  r.  Caldwell,  2  Dallas,  215;  Willing  v.  Consequa,  Peters  C.  C.  301  ; 
Stevens  v.  Gwathmcy,  9  Missouri,  628  ;  Cohen  v.  St.  Louis  Perpetual  Ins.  Co.,  11  Ibi4 
374. 

*  Mackey  v.  Hodgson,  9  Penn.  State,  46S^. 

[475] 


§  665  EXTENT   OF   GARNISHEE'S   LIABILITY.  [CUAP.  XXXV. 

mere  stakeholder,  and  not  as  a  litigant ;  and  it  has  received 
important  qualifications,  which  have  in  reality  almost  unsettled 
it.  The  courts  have  gone  into  inquiries  as  to  whether  the  gar- 
nishee used  the  money  during  the  pendency  of  the  attachment ; 
and  as  to  the  existence  of  fraud  or  collusion,  or  unreasonable 
delay  occasioned  by  the  conduct  of  the  garnishee  ;  and  various 
decisions  have  been  given,  to  which  we  will  now  direct  atten- 
tion. 

In  Pennsylvania,  the  general  rule  was  decided  to  be  as  above 
stated  ;  but  it  was  held,  that  if  there  is  any  fraud  or  collusion,  or 
unreasonal)le  delay  occasioned  by  the  conduct  of  the  garnishee,  he 
will  be  charged  with  interest.' 

In  a  case  before  Washington,  J.,  in  the  Third  Circuit,  the 
presumption  was  allowed  in  favor  of  tlie  garnishee  that  he  had 
not  used  the  money  during  the  pendency  of  the  attachment ;  but 
the  court  considered  that  if  he  did  use  it,  it  was  but  just  that  ho 
should  pay  interest.'^  And  the  same  rule  was  laid  down  by  the 
Supreme  Court  of  the  United  States.^ 

In  Maine,  the  garnishee  is  entitled  to  the  benefit  of  the  pre- 
sumption that  he  was  ready  to  pay,  and  had  reserved  and  was 
holding  the  money  unemployed  to  await  the  decision  of  the  cause ; 
but  where  the  facts  rebut  such  presumption,  he  is  chargeable  with 
interest.'* 

In  Massachusetts,  the  rule  now  is,  in  regard  to  a  debt  bearing 
interest,  that  the  presumption  is  that  the  garnishee  is  prevented 
by  law  from  paying  the  debt,  or  using  the  money ;  and  if  the 
fact  be  that  he  does  not  use  it,  he  will  not  be  chargeable  with 
interest.  But  if  this  locking  up  of  the  fund  is  merely  a  fiction, 
the  garnishee  in  truth  making  use  of  it  all  the  time  the  matter 
is  in  suspense,  he  will  be  liable  for  interest.  A  figure  used  by  the 
court,  in  a  case  involving  this  question,  has  much  illustrative 
force.  "The  service  of  the  writ  turned  the  key  upon  the  fund, 
but  the  trustee  keeps  the  key,  unlocks  the  chest,  and  takes  the 
money  in  his  own  hands.  In  such  case,  he  cannot  be  allowed  to 
say,  '  The  fund  was  locked  up,  and  therefore  I  will  pay  nothing  for 

1  Fitzgerald  v.  Caldwell,  2  Dallas,  215;  Updegraflf  v.  Spring,  11  Sergeant  &  Rawle, 
188  ;  Mackey  v.  Hodgson,  9  Penn.  State,  468;  Invin  v.  Pittsburg  &  C.  R.  R.  Co.,  43 
Ibid.  488  ;  Jackson's  Ex'r  v.  Lloyd,  44  Ibid.  82. 

2  Willing  V.  Consequa,  Peters,  C.  C.  301. 

3  Mattingly  v.  Boyd,  20  Howard  Sup.  Ct.  128. 

*  Norris  v.  Hall,  18  Maine,  332;  Blodgett  v.  Gardiner,  45  Ibid.  542. 
[476] 


CHAP.  XXXV  ]  EXTENT   OF   GARXISnEE'S   LIABILITY.  §  665 

the  use  of  it.'  This  is  the  reasou  of  the  thing,  and  there  is  no 
authority  against  it."  ^ 

In  Maryland,  if  the  garnishee  assumes  the  position  of  a  litigant, 
he  is  chargeable  with  interest.^ 

In  Virginia,  if  he  keep  the  defendant's  money  in  his  hands 
daring  tlie  pendency  of  the  attachment,  he  is  presumed  to  use  it, 
and  will  be  charged  with  interest.  To  avoid  this,  he  must  pay 
the  money  into  court.'^ 

In  Georgia,  the  presumption  is  that  the  garnishment  stays  tlie 
property  in  the  hands  of  the  garnishee,  and  the  law  considers  it  to 
remain  in  statu  quo,  until  ordered  to  be  paid  out  by  tlie  judgment 
of  the  court.  But  if  the  fact  be  that  the  fund  never  was  set 
apart  or  deposited,  but  continued  mixed  with  the  rest  of  the  gar- 
nishee's business  capital,  he  will  be  charged  with  interest.  And 
it  is  there  considered,  that  a  resistance  of  flie  attachment  by  the 
garnishee  will  entitle  the  plaintiff  to  recover  interest  against  him.'* 

In  Missouri,  it  lias  been  decided  that  the  garnishee's  denial  of 
indebtedness  to  the  defendant  fully  rebuts  any  presumption  that 
he  had  Jiad  the  money  lying  idle  by  him,  ready  to  pay  the  plain- 
tiff's demand  when  judgment  should  be  oi)tajned.^ 

In  Ohio,  it  is  held,  that  nothing  short  of  proof  that  the  garnishee 
actually  held  the  money  in  readiness  to  be  disposed  of  as  directed 
by  the  court,  will  prevent  his  being  charged  with  interest.'' 

The  deductions  from  the  decisions  thus  cited  may  be  thus  reca- 
pitulatetl :  1.  The  i>resumption  is,  generally,  that  the  garnishee 
kevps  the  money  by  him,  set  apart  for  the  payment  of  the  attach- 
ment, 2.  This  presumption  maybe  rebutted,  either  by  the  course 
of  the  garnishee  in  assuming  the  position  of  a  litigant,  or  by  any 
competent  evidence :  while  in  Virginia,  the  garnishee  can  avoid 
liability  for  interest  only  by  paying  the  money  into  court;  and  in 
Massachusetts,  must  make  it  appear  that  he  has  not  used  the 
money.  The  course  of  decision,  therefore,  is  clearly  adverse  to 
exempting  a -garnishee  from  this  liability;  and  the  probiil)ility  is 
that  eventually  the  rule,  as  laid  down  in  Massachusetts,  will  be 
generally  acquiesced  in. 

>  Adams  i-.  Cordis,  8  Piik.  260. 
•^  Chiu^e  r.  Miinhnrdt,  1  Bland,  .33.3. 

'  TazLWcU  c.  Barrett,  4  Henin;,'  i  Munford,  2.59  ;  Templcraan  v.  Fauntleroy,  3  Ran- 
dolph, 4-34. 

*  Gcor;,'ia  Ins.  and  Trust  Co.  i-.  Oliver,  I  Georgia,  38. 

*  Stevens  v.  (jwnthmey,  9  .Missouri,  636.  • 
«  Candee  v.  Webster,  9  Ohio  State,  452. 

[477] 


§  GG7  EXTENT    OF   GARNISHEE'S   LIABILITV.  [CHAP.  XXXV. 

§  QQO.  The  foregoing  conyicIeration.s  apply  only  to  the  case  of 
the  garnishee's  liability  to  a  judgment  in  favor  of  the  plaintiff  in 
attachment,  for  interest  accrued  pendente  lite.  There  is,  however, 
another  question  which  may  be  considered  as  growing  out  of  this, 
and  properly  noticeable  here.  Where  the  debt  due  from  the  gar- 
nishee to  the  defendant  is  not  wholly  consumed  in  meeting  the 
attachment,  and  the  garnishee  is  accountable  to  the  defendant  for 
a  balance,  after  satisfying  the  attachment,  what  rule  shall  govern 
the  recovery  of  interest  by  the  defendant  in  a  suit  against  him  who 
was  garnishee  ?  Shall  the  latter  be  exempted  from  paying  any 
interest  on  any  part  of  his  debt  during  the  pendency  of  the  attach- 
ment ?  or  shall  the  exemption  extend  only  to  sucli  part  of  the  debt 
as  it  was  necessary  for  him  to  retain  to  satisfy  the  attachment  ? 
The  latter  rule  has  been  declared  in  Pennsylvania,  where  the  court 
said  :  "  It  would  be  most  unreasonal)le,  when  the  dcltt  claimed  is  a 
large  one,  and  the  debt  for  which  the  attachment  issued  is  a  small 
one,  that  interest  should  lie  susjH'nded,  during  the  itendency  of  the 
action,  on  the  whole  sum.  If  the  debt  was  ten  thousand  dollars, 
and  one  hundred  only  were  attached  in  the  hands  of  the  debtor, 
it  would  shock  our  understanding,  —  all  mankind  would  cry  out 
against  the  law,  —  if  it  pronounced  that  the  creditor  should  lose 
the  interest  on  his  ten  thousand  dollars,  to  meet  the  debt  of  one 
hundred  dollars."  ^ 

§  GG7.  The  garnishee's  liability,  considered  with  reference  to 
the  time  of  the  garnishment,  cannot,  without  the  aid  of  special 
statutory  provision,  be  extended  beyond  the  effects  or  credits  of 
the  defendant  in  his  hands  at  the  date  of  the  garnishment.  The 
attachment  is  the  creature  of  the  law,  and  can  produce  no  effect 
w^hich  the  law  does  not  authorize.  Its  operation,  when  served,  is 
upon  the  attachable  interests  then  in  the  garnishee's  possession  ; 
and  it  cannot  be  brouglit  to  bear  upon  any  liability  of  the  gar- 
nishee to  the  defendant  accruing  after  its  service,  unless  the  law 
so  declare.  And  if  such  liability  at  the  time  of  the  garnishment, 
be  dependent  on  the  happening  of  a  contingency,  which  does  hap- 
pen afterwards,  so  as  to  create  an  absolute  debt,  yet  the  garnishee 
cannot  be  charged  ;  for  such  was  not  the  condition  of  things  at 
the  time  of  the  garnishment.^ 

1  Sickman  v.  Lapsley,  13  Sergeant  &  Rawle,  224. 

2  Williams  v.  A.  &  K.  Railroad  Co.,  36  Maine,  201. 

[478] 


CHAP.  XXXV.]  EXTENT   OF   GARNISHEE'S   LIABILITY.  §  667 

111  Massachusetts,  it  has  been  uniformly  held,  that  the  garnishee 
cannot  be  ciiarged  beyond  the  value  of  the  effects  in  his  hands,  or 
the  amount  of -debt  due  from  him  to  the  defendant,  when  he  was 
summoned-^     Therefore,  where  a  lessee  who  was  bound  by  the 
terms  of  his  lease  to  pay  his  rent  quarterly,  was  summoned  as 
garnishee  of  his  lessor,  it  was  decided  that  he  could  bo  charged 
only  for  so  many  quarters'  rent  as  were  due  at  the  time  of  the 
garnishment,  and  not  for  anything  liilling  due  thereafter.^     So, 
where  goods  were  delivered  to  one  to  be  manufactured,  and  the 
contract  was  entire,  and  the  job  to  be  paid  for  when  completed, 
and  before  its  completion  the  owner  was  summoned  as  garnishee 
of  the  manufacturer;  it  was  held,  that  the  contract  was  an  entire 
one,  and  that  at  the  time  of  the  garnishment  there  was  nothing 
due  to  the  latter,  and  that  the  garnishee  was  not  charg'-ablc^    So, 
where  in  an  action  arising  from  tort,  a  verdict  was  rendered  for  the 
j)laintiiron  the  "iOth  of  Aj.ril,  but  no  judgment  was  entered  therem 
until  the  following  8th  of  May,  and  in  the  mean  time,  on  the  29th 
of  April,  the  defendant  was  garnished;  it  was  decided  that,  as  the 
cause  of  action  was  for  a  tort,  on  account  of  which  the  garnishee 
could  not  be  charged,  and  as  the  verdict  did  not  convert  it  into  a 
debt  till  judgment 'should  be  rendered  on  it,  there  was  nothing 
owing  by  the  garnishee  when  he  was  summoned.*    So,  in  Virginia, 
where  an  agent  of  the  defendant,  emj)loyed  to  collect  rents,  was 
garnished,  it  was  held,  that  he  was  not  chargeable  on  account  of 
any  rents  collected  l)y  him  after  the  garnishment.^     The   same 
doctrine  obtains  in  Maine.     Tliere,  where  a  son  gave  a  bond  to  his 
father,  for  the  payment  of  certain  sums  of  money,  and  the  delivery 
of  certain  quantities  of  provisions,  at  stated  times  in  each  year  of 
his  father's  life,  it  was  held,  that  he  could  not  be  charged  as  gar- 
nishee of  his  father  for  anything  not  actually  payable  when  he  was 
garnished."     In  New  Hampshire,  Alabama,  Louisiana,  California, 
and  Tennessee,  the  same  rule  prevails.^ 

1  Wiliox  r.  Mills,  4  M21S9.  218  ;  Sanford  v.  Bliss,  12  Pick.  1 IG  ;  Mcatliam  ;-.  McCor- 
bitt,  2  Mctcalf,  .3.')2  ;  Alk-n  >:  Hall,  5  Il»iil.  2M  ;  (JsIkjitic  v.  Jordan,  3  (Jray,  277. 

•i'woud  V.  rartrid.,'e,  11  Mass.  488;  Iladk-y  v.  Peabody,  13  Gray,  200;  Brackett ». 
Bliikc,  7  Mi'tLair.  3.'J5. 

8  Rohins..n  v.  Hall,  3  Mctcalf,  301.  See  Daily  i'.  .Ionian,  2  Gushing,  390;  Hennes- 
scv  V.  Farrell,  4  Il)id.  267  ;   Warner  v.  Perkins,  8  Ibid.  518. 

*  Thayer  r.  Soiuhwiek.  8  Gray.  229. 

-  HartVv  r.  Miller,  6  (Jrattan,  434. 

e  Sayward  v.  Drew,  6  Maine,  263;  Mace  v.  Heald,  36  Ibid.  136;  Williams  v.  A.  & 
K.  Railroad  Co.,  Il.id.  201  ;  Tyler  i'.  Win^low,  46  Il.i<l.  348. 

■  Branch  Bank  c.  Poe.  1  Alubuma,  396 ;   Hazard  v.  Tranklin,  2  Ibid.  349 ;   Payne  v. 

[479] 


§  070  KXTKXT   OF   GARNISHEES   LIABILITY.  [CIIAI'.  XXXV. 

§  (308.  This  jiositiou  must  be  distinguislied  from  the  case  of  the 
garnishee's  liability  in  respect  of  dehitum  in  pnit^mti  »olvendum  in 
fiduro}  We  have  previously  seen  that  such  a  debt  may  be  reachod 
by  garnishment.^  There  the  debt  exists  at  the  time  of  the  gar- 
nishment, but  is  payable  afterward  ;  in  the  cases  now  under  con- 
sideration, the  debt  has  no  existence  until  after  the  garnislnnent. 

§  GG9.  It  should  also  be  distinguished  from  the  case  of  a  liability 
existing,  but  uncertain  as  to  amount,  at  the  time  of  the  garnish- 
ment, but  which  afterward  becomes,  as  to  the  amount,  certain. 
There,  the  garnishment  will  attach,  and  the  extent  of  the  gar- 
nishee's liability  will  be  determined  by  the  subse(iuent  ascertain- 
ment of  the  amount  due.  Such  was  a  case  where  an  insurance 
company  was  summoned  as  garnishee,  in  respect  of  an  amount 
due  the  defendant  for  a  loss  of  property  insured  l>y  the  company. 
The  loss  happened  before,  but  was  not  adjusted  until  after,  the 
garnishment,  and  the  company  was  held  liable.^  Much  more,  in 
such  a  case,  is  the  company  liable,  after  the  claim  of  the  insured 
for  a  loss  has  been  recognized  and  voted  to  be  pjiid.*  But  where 
an  insurance  company  was  garnished-,  after  a  loss,  but  before  notice 
or  proof  thereof,  and  the  policy  issued  by  it  to  the  defendant  bound 
it  to  pay  any  loss  "  within  sixty  days  after  due  notice  ami  proof 
thereof";  it  was  held,  in  Maine,  that  the  company  could  not  he 
charged,  because  at  the  time  of  the  garnishment  it  was  uncertain 
and  contingent  whether  the  comj)any  would  ever  become  liable, 
according  to  the  terms  of  the  policy,  to  pay  anything.^ 

§  670.  But  while  it  is  true  that  the  garnishee's  lial)ility  cannot, 
in  the  absence  of  statutory  authority,  be  extended  beyond  the  ef- 
fects in  his  hands  at  the  time  of  the  garnishment,  it  does  not 
necessarily  follow  that  be  must  be  charged  to  that  extent,  without 
regard  to  what  may  have  occurred  between  the  time  of  the  gar- 
Mobile,  4  H)id.  333 ;  Rohv  v.  Labuzan,  21  Ibid.  60 ;  Bean  v.  Miss.  Union  Bank,  5  Kob- 
inson  (La.),  3.33  ;  Smith  v.  B.  C.  &  M.  Railroad,  33  New  Hamp.  337;  Norris  v.  Bur- 
govnc,  4  California,  409;  Davenport  v.  Swan,  9  Humphreys,  186. 

i  Branch  Bank  v.  Poe,  1  Alabama,  396. 

2  Ante,  §  557. 

*  Franklin  F.  I.  Co.  v.  West,  8  Watts  &  Sersreant,  350.  See  Ne\-ins  i'.  Rockingham 
M.  F.  L  Co.,  5  Foster,  22 ;  Knox  v.  Protection  Ins.  Co.,  9  Conn.  430;  Girard  Fire  Ins. 
Co.  V.  Field,  45  Penn.  State,  129  ;  s.  c.  3  Grant,  329. 

*  Swamscot  Machine  Co.  r.  Partridge,  5  Foster,  369. 
5  Davis  i:  Davis,  49  A^ainc,  282. 

[480] 


CHAP.  XXXV.]  EXTENT    OF    G.VRXISIIEE'S   LIABILITY.  §  670 

nishment  and  that  of  the  judgment  against  him.  There  are  various 
modes  in  which  the  amount  for  wliich  he  is  to  be  charged  may  be 
affected  and  decided  by  events  occurring  after  he  was  garnished. 
In  the  Umguage  of  the  Supreme  Court  of  Massachusetts,  "  Some 
liabiUty  must  exist  at  the  time  the  process  is  served  in  order  to 
charge  him,  but  that  liability  may  be  greatly  modified,  and  even 
discharged,  by  subsequent  events.  Suppose  one  indebted  to  the 
principal  is  summoned  as  trustee,  but  he  has  various  liens  upon 
the  fund,  as,  for  instance,  to  indemnify  himself  against  suretyships 
and  liabilities  for  the  princijial.  These  liabilities  may  all  be  dis- 
charged, and  thus  leave  the  fund  subject  to  the  attachment ;  or 
they  may  Ije  enforced,  in  whole  or  in  part,  and  then  the  trustee 
will  have  a  clear  right  to  deduct  from  the  fund  the  amount  paid 
by  him,  in  pfirsuance  of  liabilities  which  existed  at  the  time  of 
the  service,  and  thus  the  fund  may  be  diminished,  or  even  wholly 
absorbed.  A  factor  may  have  a  large  amount  of  goods  of  his 
princiinil,  on  which,  however,  he  has  a  lien  for  his  general  balance. 
He  may  have  received  of  his  principal  bills  of  exchange,  which 
have  gone  forward,  but  of  which  the  acceptance  is  uncertain.  In 
this  state  he  is  summoned.  lie  will  not  be  chargeable  for  funds 
acquired  after  the  service;  but  he  may  receive  funds  after  the 
service,  whicii  will  discharge  and  reverse  the  balance,  and  leave 
the  fund  liable  to  the  trustee  process ;  whereas,  but  for  such  ac- 
quisition of  funds  afterwards,  the  fund  attached  would  be  first 
liable  to  the  factor's  balance,  which  might  thus  aijsorlj  it.  Tiiere 
are  various  modes,  therefore,  in  which  the  question,  whether  trus- 
tee or  not,  and  for  what  amount,  may  be  affected  and  decided  by 
events  occurring  after  the  service  of  the  process."  The  case  to 
which  thes.i  views  were  applied  was  this:  A.  sued  li.  by  attach- 
ment, and  summoned  C.  as  garnishee,  who  was  at  tiie  time  indei)ted 
to  B.,  but  B.  was  also  indebted  to  him.  After  he  was  garnished, 
C.  sued  B.  and  obtained  judgment  against  him,  and  when  A.  ob- 
tained a  judgment  against  C.  as  garnishee,  C.  paid  over  only  the 
difference  between  the  amount  of  his  judgment  against  B.  and 
that  of  A.'s  judgment  against  him.  The  court  held,  that  where 
one  is  chargeable  as  a  debtor  of  the  defendant,  the  question  will 
be,  whether  he  holds  any  balance,  upon  a  liquidation  of  all  de- 
mands. In  striking  such  balance  he  has  a  right  to  set  off,  from 
that  which  he  acknowledges  he  owes  the  jtrincipal,  any  demand, 
which  he  might  set  off  in  any  of  the  modes,  allowed  eitlier  by 
.11  [■I'^l] 


§  671  EXTENT   OF   GARNISHEE'S   LIABILITY.  [CIIAP.  XXXV. 

statute  or  common  law,  or  in  any  course  of  proceeding.  And  as 
it  a])peared  that  the  garnishee  was  entitled  to  the  set-off  in  the 
case  in  hand,  he  was  discharged.^ 

§  671.  In  New  nampshire,^  in  Vermont,^  and  in  Pennsylvania* 
since  1836,  the  garnishee  is  chargeahle  not  only  for  the  effects  in 
his  hands  when  he  was  summoned,  l)ut  also  for  whatever  may  come 
into  his  hands,  or  become  due  from  him  to  the  defendant,  between 
the  time  of  the  garnishment  and  that  of  the  answer.  In  each 
case,  however,  tiiis  results  from  peculiar  statutory  provisions.^ 
In  Maryland  the  practice  is  to  condemn  all  property  of  the  de- 
fendant in  the  hands  of  the  garnishee  at  the  time  of  trial."  And 
in  Now  York,  where  garnishment,  as  it  elsewhere  exists,  is  not 
known,  but  where  tlie  service  of  the  attachment  uj»on  a  party 
having  property  of  the  defendant  in  his  possession  is,  in  effect,  an 
attachment  of  the  property,  it  was  held,  as  between  different  at- 
taching creditors,  that  an  attachment  served  on  the  Oth  of  April, 
upon  a  factor  having  in  his  hands  property  of  the  defendant,  and 
also  bills  of  lading  of  goods  consigned  to  him  by  the  defendant, 
but  not  yet  received,  was  a  continuing  attachment,  which  was  en- 
titled to  })rcccdencc  of  One  served  on  the  loth  of  June,  after  the 
reception  by  the  factor  of  the  goods  specified  in  the  bills  of  lading.'^ 

1  Smith  V.  Stearns,  19  Tick.  20.     See  post,  §  683-689. 

*  Edyerly  r.  Sanborn,  6  New  Ilatnp.  397. 

8  Newell  r.  Ferris,  16  Vermont,  135;  Sprin^j  v.  Aver,  23  Ibid.  ."iie. 

*  Franklin  F.  I.  Co.  r.  West,  8  Watts  &  Ser{,'eant,  350;  Silverwood  v.  Bellar,  8 
Wharton,  4-20 ;  Sheet/,  i:  llobcnsaek,  20  IVnn.  State,  412. 

^  There  is  no  suffieient  reason  why  such  statutory  provisions  should  not  be  nnivcr- 
sally  adopted,  but  coLjent  reasons  why  they  fhould.  The  eonfinement  of  the  operation 
of  garnishment  to  the  single  point  of  time  at  whieh  the  fjamishee  is  summoned,  how- 
ever sustained  by  hit^h  authority,  is  contrary  to  the  custom  of  London,  out  of  which 
our  systems  of  attachment  laws  have  sprun;,',  and  materially  diminishes  the  usefulness 
and  availability  of  the  remedy.  It  would  be  wise,  therefore,  as  has  been  recently  done 
in  Alabama  and  Missouri,  to  give  garnishment  the  etlect  of  holding,  not  only  the  cftects 
in  the  garnishee's  hands  when  summoned,  but  all  coming  into  his  hands  between  that 
time  and  the  time  of  his  answering. 

*  Glenn  i:  Boston  &  Sandwich  Glass  Co.,  7  Maryland,  287. 

"  Patterson  v.  Perry,  5  Bosworth,  518 ;  8.  c.  10  Abbott  Pr.  R.  82. 
[482] 


CHAP.  XXX\n.J  GARNISHEE'S   RIGHT   OF   DEFENCE.  §  G74 


CHAPTER    XXXYI. 

THE   garnishee's   RIGHT   OP   DEFENCE    AGAINST    HIS    LIABILITY  TO  THE 

DEFENDANT. 

§  G72.  As  tlie  attaching  creditor  can  hold  the  garni.shee  only  to 
the  extent  of  the  defendant's  claim  against  the  garnishee,  and  can 
acquire  no  ri^rhts  against  the  latter,  except  such  as  the  defendant 
had  ;  and  as  he  is  not  inTniitted  to  place  tlie  garnishee  in  any  worse 
condition  than  he  would  l)e  in,  if  sued  by  the  defendant ;  it  fol- 
lows necessarily,  that  whatever  defence  the  garnishee  could  urge 
against  an  action  by  the  defendant,  for  the  del)t  in  respect  of  which 
he  is  garnished,  he  may  set  up  in  bar  of  a  judgment  against  him 
as  garnishee.'  Were  it  otherwise,  an  attaching  creditor  might 
obtain  a  recourse  against  the  garni.shee,  whicli  the  defendant  could 
not:  a  projKjsition,  the  statement  of  which  —  except  as  to  cases 
of  fraud  —  is  its  own  refutation. 

§  <;7:5.  The  foundation  of  all  proceedings  against  garnishees  is, 
that  the  plaintiff  shall  have  an  unsatisfied  claim  against  the  de- 
fendant. Whenever  his  claim  is  satisfn-d,  ho  can  no  more  subject 
a  garnish.Mi  to  liability,  than  he  can  levy  on  projK'rty.  It  is,  there- 
fore, entindy  comi)Ctent  for  the  garnishee,  in  order  to  prevent  a 
judgment  against  him,  to  show  tljat  whatever  claim  the  plaintiff 
may  have  had  against  tlie  defendant  has  been  satisfied  ;  and,  if 
necessary,  he  may  tile  a  bill  of  discovery  against  the  plaintiff  to 
establish  the  fact.'' 

§  G74.  No  voluntary  payment  by  a  garnishee  of  his  del)t  to  the 
defendant,  after  the  garnishment,  and  with  a  knowledge  on  his 
part  of  its  existence,  will  prevent  his  being  liable  as  garnishee;* 

J  Stnms'*  Ex'r  r.  Bn**.  35  Pcnn.  State,  333  ;  Myers  e.  Baltw;ll.  37  Ibid.  491  ;  Ed«on 
r.  Sprout,  X'i  Vfrmont,  77. 

•«  llinklc  r.  Currin,  I  Humphrey*.  74  ;  Bal-lwin  r.  Morrill,  8  Il.id.  132;  Spring  r. 
Aver.  23  Vcnnont.  516;  Thompson  r.  Wallate,  3  Alahama,  132;  Pri.  e  ,:  Ilitr^ins,  1 
Lj*tt.ll.  274;  (;i.-a*on  r.  flacc,  2  Allen,  410;  Kiddle  r.  Ettinjj.  32  I'enn.  State,  412; 
Howard  r.  Crawfonl.  21  Texas.  399. 

•  Locke  r.  TipprtU.  7  Mass.  149  ;  Johnson  c.  Carry,  2  California,  Vi :  Home  Mutual 
Ins.  Co.  r.  Gaml.lc,  14  Missouri,  407;  PuUiam  p.  Aler,  15  Grattan,  54;  Wilder  r. 
Wtatherhead,  32  VcrmoDt,  765.  r  ioqt 


§  674  GARNISHEE'S   RIGHT   OF   DEFENCE  [CHAP.  XXXVI. 

but  if  before  the  ganiisbmeiit  the  garnishee  has  paid  his  debt  to 
the  dufundaiit,  such  })aymeut  is  as  complete  a  defence  as  it  would 
be  in  an  action  by  the  defendant  against  him.  But  it  must  bo  a 
payment  in  fact,  not  a  contrivance  intended  to  be  a  payment  or 
not,  as  circumstances  should  subsequently  require.  Therefore, 
where  a  person,  being  told  that  he  was  going  to  be  summoned  as 
garnishee  of  another,  gave  the  other  a  check  on  a  bank,  and  was 
afterwards  garnished  ;  and  stated  in  his  answer  that  he  did  not 
know  that  the  check  had  ever  been  presented  to  the  bank,  and 
that,  by  an  understanding  between  him  and  the  defendant,  it  was 
placed  in  the  hands  of  a  clerk  in  the  garnishee's  store  ;  it  was 
held,  that  tlie  garnishee  might  at  pleasure  revoke  the  check,  and 
that  tlic  giving  of  it  was  no  payment,  and  he  was  charged.^  If 
the  garnishee's  liability  to  the  defendant  be  one  in  which  another 
is  jointly  bound  with  him,  and  his  co-obligor,  not  being  garnished, 
l)ay  the  debt,  such  payment  is  a  discharge  of  the  garnishee's  lia- 
bility .^  So,  likewise,  if  a  garnishee  be  summoned  by  leaving  a 
notice  at  his  place  of  abode,  and  before  he  knows  of  the  garnish- 
ment, he  pays  his  debt  to  the  defendant,  such  payment  will  bo 
good  as  against  the  attaching  creditor,  though  the  garnishee  may 
have  suspected  that  the  defendant  demanded  it  from  an  appre- 
hension that  it  might  be  attached.^  So,  where  the  defendant  was 
employed  by  the  garnishee  in  his  store,  at  sti])ulated  wages,  and 

1  Dennie  v.  Ilnrt,  2'Pick.  204.  In  Barn.ard  v.  Graves,  IG  Pick.  41,  tlic  town  of 
"Worcester  was  sunnnoned  as  ;;arnishee  of  A.,  and  answered,  sliowing  tliat  defenilant 
^^:^.■^  tinplovod  by  the  town;  that  on  a  certain  day  a  settlenient  of  accounts  was  had 
h''twoen  A.  and  the  town,  when  the  selectmen  pave  him  a  check  on  a  hank  for  S  2U) ; 
that  there  being,  liowever,  a  debt  due  from  him  to  tlie  town,  the  nniount  of  wiiich  was 
not  tlien  ascertained,  it  was  agreed  that  tiie  amount  of  the  debt,  wiicn  ascertaineil, 
slioiild  be  deducted  from  the  sum  to  be  obtained  by  the  cluck ;  that  this  debt  w;i>  idur- 
wards  found  to  amount  to  s$  67.58  ;  that  the  defendant  being  also  in<lebted  to  one  I?., 
in  the  sum  of  $19.77,  it  was  further  agreed  by  the  selectmen  and  the  defendant,  that 
the  check  should  be  placed  in  B.'s  hands,  and  the  amount  thereof  paid  to  him  by  the 
bank,  in  order  that  he  might  retain  the  sums  due  from  the  defendant  to  the  town  and 
to  himself;  and  the  check  was  accordingly  received  by  13.,  and  was  in  his  hands  at  the 
time  of  the  garnishment.  The  above  case  of  Dennie  v.  Hart  was  relied  on  as  estab- 
lishing that  the  giving  of  the  check  was  no  payment  by  the  town  ;  but  the  court  said  : 
"  In  the  case  of  Dennie  v.  Hart,  the  court  considered  the  transaction  merely  colorable ; 
that  the  depositary  of  the  check  was  the  agent  of  the  trustee  himself;  and  that  the  trus- 
tee had  the  control  of  it,  and  might  revoke  it  when  he  pleased ;  and  the  decision  went 
on  that  ground.  In  the  present  case,  we  think  the  depositary  was  not  the  agent  of  the 
town,  but  of  A.,  to  receive  and  appropriate  the  amount  of  the  check,  and  that  the  town 
could  not  control  or  revoke  it.  The  check,  therefore,  was  a  payment  of  tlie  debt  due 
from  the  town  to  A." 

■^  Jewett  V.  Bacon,  6  Mass.  60 ;  Nash  v.  Brophy,  13  Metcalf,  476. 

3  Iiobinson  v.  Hall,  3  Metcalf,  301. 
[484] 


CHAP.  XXXM]      against   fflS  LIABILITY   TO   THE   DEFENDANT.         §  674 

always  received  liis  wages  as  he  wanted  them,  keeping  his  own 
account,  and  crediting  on  the  books  of  his  employer  what  he  re- 
ceived, whether  money  or  goods;  and  the  garnishee  was  summoned 
by  leaving  the  process  at  his  house  on  Saturday,  during  his  tem- 
porary absence,  at  wiiich  time  he  was  indebted  to  the  defendant, 
but  on  going  to  liis  store  early  on  the  Monday  morning  following, 
he  found  that  the  defendant  had  credited  himself  with  money  and 
goods  to  tlie  amount  of  the  indebtedness ;  it  was  held,  that  this 
was  a  payment  which  discharged  the  garnishee.^  So,  where  a 
garni.shee  was  discharged,  and  before  the  plaintiff  sued  out  a  writ 
of  error  to  the  judgment  of  the  court  discharging  him,  he  paid  his 
debt  to  thp  defendant,  who  had  recovered  judgment  against  him 
therefor ;  it  was  held,  that  the  payment  was  a  valid  defence  to  the 
garnishment,  after  the  judgment  of  discharge  had  been  reversed 
by  the  ai)j)ellate  court.-  But  where  a  corporation  was  summoned 
as  garnishee,  and  asserted  a  payment  to  the  defendant  after  the 
servieti  of  the  process,  without  knowledge  of  its  service,  and  denied 
that  the  service  had  been,  as  returned  by  the  officer,  upon  the 
agent  of  the  curjxjratiijn  ;  it  was  held,  that  the  return  was  conclu- 
sive as  to  the  manner  of  service,  and  charged  the  corporation  with 
personal  knowledge  from  the  time  it  was  stated  to  have  been  made, 
and  that  a  paynuMit  by  the  corjKjration  after  that  time  would  not 
discharge  its  lial)ility.^  Where,  however,  an  insurance  company 
in  Boston  was  garnished  on  account  of  a  loss  for  which  it  was  in 

'  Thonic  V.  Mattttcwii,  i  Cusliin^;,  544.  In  this  com:  was  involved  the  cun.struction 
of  ch.  H>9,  §  5,  of  the  Ri'viiHtl  Statutt's  of  .Ma-s-iachu^itt-i,  which  is  in  thi-sc  words: 
"  If,  after  the  senicc  on  the  trustee,  hu4  U-fuR-  ho  ho/  any  knowliMl^'c  thereof,  he  shall 
in  i^tMxl  faith  make  any  payment  ....  for  or  on  account  of  the  ^kmIs,  etHrts,  or  ere«Kt8 

in  hi«  haniN he  ^hall  U-  allowed   therefor,  in  the  same  miinnrr  lus  if  the  jiay- 

ment  ....  had  Ixfu  maile  ....  h«'forc  the  service  of  the  writ  on  him."  Tlic  court 
Mid :  "  It  wa^  ar;;u(>d  for  the  piaintitT,  that  if  the  facts  disclosed  show  jmyment,  it  waa 
not  a  payment  in  i^ikk]  faith,  within  the  meanin;;  of  the  statute;  as  the  defi-n<l;int  must 
Iw  j.n^tumed  to  havr  taken  to  himself  the  roomy  and  the  barrel  of  flour,  fur  thi-  |)ur|>osc 
of  <lif.atin>f  the  tru^tec  proce^.  Very  probably  it  wa.s  so.  Hut  it  is  clear,  that  by 
payment  in  };ood  faith,  the  statute  means  the  pMxi  faith  of  the  party  payinj.',  and  not 
of  the  [ijirty  nt-eivin;;.  And  if,  as  we  understand  the  an>wers,  the  trustee  h:ul  author- 
ized the  ilefendant  to  take  his  pay,  at  his  pleasure,  and  he  took  it  after  he  knew  th:it 
the  trustJ-e  process  hud  been  .served,  but  l>efore  the  trustee  knew  that  fact,  the  trusti-e 
could  not  Imve  retracted  that  authority,  after  havin;;  knowIi'd;,'c  of  the  service,  without 
a  violation  of  good  faith.  The  authority  given  to  the  di-fen<lant  to  take  his  pay  iis  he 
wanted  it  mu.»t  l»c  deemed  to  have  been  honwtly  and  fairly  given,  and  the  very  taking 
of  the  money  and  flour,  at  least  to  the  amount  ilue  to  him  for  wages,  con^-titnted  a 
payment,  with  the  same  legal  consequences  as  if  the  trustee,  at  his  request,  had  givea 
him  the  same  with  his  own  h:md,  and  taken  a  rei-eipt." 

-  Webb  r.  Miller.  24  Mississippi,  638. 

•  Woo<l worth  r.  Ranzehousen.  7  Cnshing,  4-30. 

[485] 


§  C77  GARNISHEE'S   RIGHT    OF   DEFENCE  [CHAP.  XXX\1. 

debted  to  the  dcfeiidiint,  and  the  garnisliincnt  process  was  served 
on  it  about  three  hours  before  its  agent,  ignorant  of  that  fact,  set- 
tled the  loss  at  Worcester,  some  fifty  miles  distant  from  Boston  ; 
it  was  held,  that  the  payment  by  the  agent  was  a  discharge  of  the 
garnishee's  liability.^ 

§  674  a.  The  time  at  which  a  payment  by  a  garnishee  to  a  lo- 
fcndant  was  made  may  become  very  material  in  reference  to  his 
liability  under  a  garnishment  made  on  the  same  day  and  about  the 
same  time.  If  the  garnishee  set  up  such  a  payment,  it  is  for  hira 
to  show  tliat  it  was  made  prior  to  the  garnishment,  for  he  is  cogni- 
zant of  both  facts,  and,  better  than  any  one  else,  can  jhow  their 
relative  positions.  He  is  not  entitled  to  a  presumption  in  liis  favor. 
On  tlic  contrary,  the  presumption  will  be  against  him,  if  he  fails  to 
show  the  true  stale  of  the  facts.  Thus,  where  the  return  of  tho 
officer  showed  the  garnishment  of  a  corporation  at  half  past  six 
o'clock  in  the  forenoon,  and  tlie  garnishee  set  up  a  payment  made 
on  the  same  day,  without  any  evidence  of  the  particular  time,  tiio 
garnishment  was  held  to  hare  been  prior  to  the  payment.^ 

§  075.  But  while  a  voluntary  payment,  after  garnishment,  will 
not  discharge  the  garnishee's  liability,  a  payment  under  a  previous 
garnishment  will  have  all  tho  force  and  effect  of  a  payment  prior 
to  the  institution  of  the  suit  in  which  it  is  sought  to  ciiarge  him ; 
for  the  operation  of  the  previous  garnishment  began  at  the  time 
it  was  made,  and  the  sul)se(iuent  payment  was  only  tho  consum- 
mation of  a  right  existing  at  the  tiitie  of  the  second  garnishment- 

§  676.  Though  a  garnishee  make  payment  after  his  garnish- 
ment, on  execution  obtained  against  him  by  the  defendant,  yet  if 
such  execution  were  irregular  and  miglit  have  been  set  aside  on 
his  motion,  it  is  held,  in  Missouri,  to  be  no  protection  against  the 
garnishment.^ 

§  677.  If  one  indebted  pay  his  debt  to  a  creditor  of  his  creditor, 
without  any  authority  from  his  creditor,  and  be  afterwards  gar- 
nished in  a  suit  against  the  latter,  this  unauthorized  payment  will 

1  Spooner  v.  Rowland,  4  Allen,  485. 

2  Harris  v.  Somerset  &  Kennebec  R.  R.  Co.,  47  Maine,  298. 
*  Home  Mutual  Ins.  Co.  v.  Gamble,  14  Missouri,  407. 

[486J 


CHAP.  XXX VI.]       AGAINST   HIS   LIABILITY   TO   THE   DEFENDANT.         §  G81 

uot  avail  him  as  a  dofencc,  and  a  ratification  of  it  by  the  defend- 
ant after  the  garnishment  will  be  inelTectual,  because  the  jus  da- 
ponendl  in  the  defendant  is  taken  away  by  the  attachment.^ 

S  GTS.  If  the  debt  of  the  garnishee  to  the  defendant  is  barred 
by  the  statute  of  limitations,  he  may  take  advantage  of  the  statute, 
just  as  he  could  if  su.-.l  hy  the  defendant.^ 

§079.  If  the  consideration  of  the  garnishee's  debt  to  the 
defendant  has  failed,  the  garnishee  may  take  advantage  of  it. 
Thus  wlierc  the  garnishee  harl  purchased  a  tract  of  land  irom  the 
defendant,  the  last  payment  for  which  was  due,  but  after  the  note 
therefor  was  given,  the  garnishee  discovered  that  there  was  a 
jud-ment  against  the  defendant  which  bound  the  land,  and  which 
he  was  comiielled  to  satisfy,  and  the  amount  was  greater  than  that 
of  the  note  ;  it  was  held  that  he  could  not  be  charged.^ 

§  G80.  If  a  .lebtor,  ))y  the  default  of  his  creditor,  be  discharged 
from  his  contract,  he  cannot,  in  respect  of  that  contract,  bo 
char.red  as  garnishee  of  his  creditor.  Thus,  where  A.  gave  his 
uote'to  li.  for  five  tons  of  hay,  deliverable  in  July,  1808,  on  A.'s 
farm  and  H.  was  not  there  then  to  receive  it ;  it  was  held,  that  B. 
hud  'no  cause  of  action  against  A.,  and  that  A.,  therefore,  could 
not  be  held  us  his  garnishee.* 

§  G81.  Where,  as  in  Virginia,  the  proceeding  l)y  foreign  attach- 
ment is  in  chancery,  the  garnishee  may  set  up  any  e.iuitable 
defence,  which  shows  that  in  equity  he  owes  no  debt  to  the 
defendant.*^  It  was,  therefore,  held  in  that  State,  m  such  a  pro- 
ccedin'-,  that  a  garnishee  with  whom  a  horse  was  left  by  the 
defendant  for  keeping,  was  entitled,  as  against  the  attaching 
creditor,  to  have  his  claim  for  the  keeping  first  satisfied  out  ot 
the  proiHirty.' 

1  Sturtcvant  v.  Rol.mJon.  18  Pick.  17.5. 

i  HinWle  r.  Currin.  2  IIum,.»m-ys,  1.17  ;  Benton  r.  L.n.lell.  10  M.ssoun,  5.57  Gee  i . 
^ummin,^  2  Haywood  (N.  C).  398 ;    Gc«  r.  Warwick.  Ibid.  354 ;    Haz.n  r.  Kmer>on. 

'  TsJaon  ...  Simond,.  Wri«ht.  724.     Sec  Matlm  r.  Clark,  2  .Mill.'  Const.  Ct.  456; 
Russell  r.  Hinton.  1  .Muq.hey.  46S ;  Moscr  v.  MuUrry.  7  \>  att^  12. 

*  .Jfwctt  I'.  Bacon,  6  Mass.  60. 

*  (;in.*seU  V.  Thomas,  3  I^'i^'h,  113. 

*  WiUiain*on  v.  Gayle,  7  Grattan,  152.  r  .^-t 

[is,] 


§  684  GARXISIILES   RIGUT   UF   DEFENCE  [ciIAl'.  XXXVL 

§  G82.  But  any  defence  which  the  garnishee  seeks  to  interpose 
against  his  liability  must  he  such  as  would  avail  hiiu  in  an  action 
by  the  defendant  against  liim.  Extraneous  matters  having  uo 
relation  to  the  question  of  his  indebtedness  to  tiie  defendant 
cannot  be  set  up  by  him.  It  was,  therefore,  held,  that  he  could 
not  defeat  the  garnishment  by  showing  that  the  judgment  under 
which  he  was  garnished  did  not  belong  to  the  plaintill.*  And  so, 
a  garnishee  cannot  retain  from  the  elfects  in  his  hands  anvthinir 
to  meet  a  contingent  liability  which  he  is  under  for  tiie  defendaut. 
Thus,  where  the  garnishee  had  held  notes  of  the  defendant  for  a 
debt,  and  caused  them  to  be  discounted  ijy,  and  indorsed  them  to, 
a  bank,  and  they  were  not  yet  due  when  the  garnishment  took 
place  ;  it  was  held,  that  the  garnishee  had  no  claim  against  the 
defendant,  and  that  his  contingent  liability  as  iudorser  of  the 
notes  was  no  defence  to  his  being  charged  as  garnishee  ;  and  the 
court  refused  to  continue  the  cause  until  the  maturity  of  the  notes, 
in  order  to  see  whether  they  would  l)e  paid.'^ 

§  683.  The  particular  defence  which  has  given  rise  to  the  greats 
est  amount  of  adjudication,  is  set-off ;  concerning  which  the  rule 
is  equally  well  established,  that  the  rights  of  the  garnishee  shall 
not  be  disturbed  by  the  garnishment.  Whatever  claim,  therefore, 
he  has  agahist  the  defendant,  and  of  which  he  could  avail  himself 
by  set-off  in  an  action  between  them,  will  be  equally  available  to 
him  in  the  same  way,  in  the  garnishment  proceeding.^  And 
thougii  the  set-otT  consist  of  moneys  paid  by  the  garnishee,  on 
his  verl)al  asmmpsit  of  debts  of  the  defendant,  which  he  might 
have  avoided  by  pleading  the  Statute  of  Frauds,  the  plaintiflf 
cannot  object  to  it ;  for  that  plea  is  a  personal  privilege  which 
may  be  waived,  and  having  been  waived  by  the  garnishee,  his 
payment  cannot  be  assailed  on  that  ground.* 

§  684.  The  claim  which  the  garnishee  seeks  to  set  off  against 
his  indebtedness  to  the  defendant  must,  however,  be  due  in  the 

1  Jackson  v.  Shipman,  28  Alabama,  488. 

2  Smith  V.  B.  C.  &  M.  Railroad,  33  New  Hamp.  337. 

3  Picquct  V.  Swan,  4  Mason,  443  ;  Ashby  v.  Watson,  9  Missonri,  236  ;  Beacli  i-.  Vilcs, 
2  Peters,  675;  Mattin-ly  v.  Boyd,  20  Howard  Sup.  Ct.  128;  Arlcdjie  r.  White,  1  Head, 
241  ;  Kankin  v.  Simonds,  27  Dlinois,  352;  Sampson  i\  Hyde,  16  New  Ilamp.  492; 
Brown  v.  Warren,  43  Ibid.  430  ;  Stronjj's  Ex'r  v.  Bass,  35  Penn.  State,  333. 

*  McCov  n.  Williams,  6  Illinois  (1  Oilman),  584. 
[488] 


CHAP.  XXXVI.]      AGAIXST   HIS   LIABILITY   TO   THE  DEFEKDAXT.         §  685 

same  right  as  his  indehteduess.     Therefore,  a  garnishee  auswering 
that  he°is  indehted  to  the  defendant,  cannot  set  off  a  claim  he 
has,  as  administrator  of  another  person,  against  the  defendant.^ 
So,' if  he  he  indebted  indhiduully  to  the  defendant,  he  cannot 
set  off  a  debt  due  from  the  defendant  to  hira  and  another  jointly .» 
So,  where  several  garnishees  were  indel)ted,  as  copartners,  to  the 
defendant,  who  was  indebted  to  them  individually  as  legatees,  it 
was  held,  that  the  two  debts  could  not  bo  set  off  against  each 
other.3     jjiit  where  a  copartnership  was  indebted  to  the  defendant, 
and  a  part  oi.lv  of  the  members  of  the  firm  were  garnished,  it 
was  held,  in  Massarhusetts,  that  those  who  were  summoned  should 
be  allowed  the  benefit  of  such  setoffs  as  they,  and  their  copart- 
ners, not   summoned,   were   entitled    to   against  the    defendant.* 
And  where  A.  had  in  his  hands  a  fund,  out  of  which  he  and  B.  & 
C.  were  entitled  to  a  certain  amount,  and  the  remainder  was  to 
go  to  D.,  and  A.  was  summoned  as  garnishee  of  D.  ;   it  was  held, 
that  he  might  retain  not  only  what  was  due  to  himself,  but  what 
was  due  to  B.  &  C.^     And  where  two  persons  were  summoned 
as  garnishees,  who  were  indebted  to  the  defendant  jointly,  it  was 
held,  that  tlu'V  might  set  off  against  their  dei)t  to  him,  not  only  a 
claim  which  tii.y  Jointly  had  against  him,  but  the  several  claim  of 
oach  of  them.*^ 

§  .;s:,.  Whether  the  garnishee's  right  to  set-off  will  l)e  re- 
stricted to  debts  actually  due  and  payable  from  the  defendant 
to  him  at  the  date  of  the  garnishment,  has  been  differently 
decided.  In  Massachusetts,  New  Hampshire,  and  Vermont,  the 
rule  is,  that  if  the  defendant  btfore  final  amwer  becomes  indebted 
to  the  garnishee,  on  any  contract  entered  into  before  the  garnish- 
ment, the  garnishee's  right  of  set-off  exists.^  Thus,  where  the 
garni^hee,  when  summoned,  was  indebtxjd  to  the  defendant,  but 
was,  at  the  same  time,  liable  as  accommodation  indorser  of  a  note 

*  Thomas  r.  Hopiwr,  5  Alabama,  -442. 
«  (JniT  I'.  Bidg^U,  5  Arkan*ai,  16. 

.  BlaiuLanl  r  Cole.  8  Louisiana.  160 ;  WelU  r.  Mace,  17  Vermont.  503.  See  Nor- 
cros-H  r.  lUntun,  38  iVnn.  Sutc,  217. 

♦  lliithttway  c.  Uusm-11.  16  MaAs.  473. 

»  Miinufiutunrs'  Bank  r.  Us^'ood,  12  Maine,  117. 

«  Brown  v.  Warrvn.  43  New  Hamp.  430.  c-,«m. 

:  Boston  TviM,  Co.  r.  Mortinur.  7  Pick.  166;  Allen  v.  Hall,  5  Mctcalf.  263;  Swam- 
..t^lud^nc  Co.  ...  rartrid^o.  5  Foster.  369;  Boardman  ..  Cu.h.n.  12  ^^^;[^^2;^ 
103  ;  BoMon  &  Maine  Railroad  r.  Oliver,  32  Ibid.  172  ;  Strong  v.  Mitchell,  19  ^  cnnont, 
644  ;  Smith  r.  Steams,  19  Pick.  20.  r489T 


§  686  GARNisiii:i:s  kight  of  defence        [chap,  xxxvi. 

of  the  defendant  for  a  larger  amount,  which  hecame  due  after 
the  garnii!-hment,  and  was  protested  for  non-payment,  and  the 
garnishee  paid  it  before  he  made  his  answer  ;  the  court  held,  that 
he  could  set  off  the  amount  of  the  note  against  his  debt  to  the 
defendant ;  and  in  giving  their  decision,  observed  :  "  Under  these 
circumstances,  we  think  he  cannot  be  held  as  trustee  ;  for  it  would 
be  against  justice  that  he  should  be  held  to  pay  a  creditor  of  his 
debtor  the  only  money  by  which  he  can  partially  indemnify  him- 
self. This  question  has  not  before  arisen,  but  we  think  it  quite 
consistent  with  the  object  and  views  of  the  legislature,  and  with 
the  general  tenor  of  the  statute,  that  if  before  final  answer  the 
debtor  becomes  indebted  to  the  respondent  on  any  contract  cnterod 
into  before  the  service  of  tlie  writ,  the  latter  shall  have  a  right 
of  set-otr,  and  be  chargeable  only  with  the  final  balance,  if  one 
should  be  due.  This  decision  will  not  reach  the  case  of  a  liability 
incurred  after  tlie  service  of  a  writ,  or  where  the  effect  of  such 
liability  may  be  avoided  by  reasonable  diligence  on  the  part  of 
the  person  liable,  to  procure  the  payment  of  tlie  debt  by  the 
principal ;  nor  where  it  is  contingent  whether  the  liability  will 
ever  be  enforced  or  not ;  but  we  confine  it  to  such  a  case  as  we 
have  before  us,  in  which  there  was  an  actual  liability  before 
the  service  of  the  writ,  and  an  actual  payment,  by  necessity, 
before  the  answer."  ^ 

§  68G.  On  the  other  hand,  it  has  been  decided  in  Delaware, 
that  the  garnishee  cannot  set  olT  a  note  of  the  defendant  which 
was  not  due  at  the  time  of  the  garnishment.^  And  where,  before 
the  garnishment,  a  judgment  had  been  obtained  against  the  gar- 
nishee, as  security  of  the  defendant,  it  was  held,  in  Arkansas, 
to  be  no  defence  against  the  garnishee's  liability,^  even  though 
after  the  garnishment  he  satisfied  the  judgment.*  In  Elaine,  it  is 
held,  that  the  debt  due  the  garnishee,  and  which  he  seeks  to  set 
off  against  his  liability  to  the  defendant,  must  have  been  a  debt 
due  at  the  time  of  the  garnishment.^  And  so  in  Alabama.^  In 
the  Circuit  Court  of  the  United  States  for  the  Third  Circuit,  the 
following  case  occurred.  A.  was  summoned  on  the  14th  of 
September,  as  garnishee  of  B.,  and  in  his  answer  admitted  having 

1  Boston  Type  Co.  v.  Mortimer,  7  Pick.  166.      *  Watkins  v.  Field,  6  Arkansas,  .391. 

2  Edwards  v.  Delaplainc,  2  Harrinfrton,  322.       ^  Injralls  v.  Dennett,  6  Maim-,  79. 

^  Field  V.  Watkius,  5  Arkansas,  672.  ^  g^-jf  y.  Kirkland,  24  Alabama,  275. 

[490] 


CHAP.  XXXVI.]      AGAINST    HIS   LIABILITY   TO   THE  DEFENDANT.         §  (386 

received  on   the  19tli  of  September,  fifty  crates  of  earthenware 
belonging'  to  the  defendant,  which  on  being  sold  netted  $  900  ; 
but  stated   that  he  was  indoreer  on  bills  accepted  by  B.,  which 
had  Ijceu  protested  before  the  garnishment,  and  after  the  garnish- 
ment were  paid  by  him.     This  case  it  will  be  perceived  diflfers 
from   that   in   Massachusetts,  just  cited,   hi   the  important   point 
of  the  garnishee's  liability  as  indorser  having  been  fixed  before 
the  garnishment,  though,  as  in  that  case,  the  payment  was  made 
afterward.     Washingto.v,  J.,  charged  the  jury:  "This  is  a  hard 
case  upon  the  garnishee,  who,  at  the  time  this  attachment  was 
levied,  was  lialtle  to  pay  these  bills,  as  indorser,  to  a  much  greater 
amount    than    the  value  of   the    funds  of   the  defendant  in  his 
hands,  and  if  he  had  then  paid  them  he  most  undoubtedly  would 
not  have   had   in   his  hands  any  ctlV-cts  of  the  dcf-ndant,  as  ho 
could  not  have  been  liable  for  more  than  the  balance  of  account 
between   him  and   the  defendant.     But   until   he   paid   them,  he 
was  not  a  creditor  of  the  defendant,  and  uf  course  the  attachment 
bound   the  eflects  of  the  defendant  in  his  hands,  at  the  time  it 
was  laid,  which  could  not  be  afleeted  by  subsequent  credits  to 
which  he  might  be  entitled.     The  law  of  this  State  is  too  strong 
l(j  be  re>isled.     It  not  only  declares,  that  the  goods  and  effects 
of  the  absent  debtor  in  the  hands  of  the  garnishee  shall  l)c  bound 
by  the   attachment,  but   that    the   garnishee   shall   plead    that   ho 
had   no  goods  and  effects  of  the   debtor  in   his   hands  when  the 
attachment    was    levied,   nor   at   any  time   since;    on    which    the 
plaintiff  is  to  take  issue,  and  the  jury  are  to  find  the  fact  put  iu 
ir-sue,  one  way  or  the  other.     Now,  until  these  bills  were  paid  by 
the  garnishee,  he  had  no  claim  against  the  defendant;  and  on 
the   ll'tii   of  SeptemlKjr,  he  had  goods  of  the   defendant  in   his 
hands,  which  must  decide  the  issue  in  favor  of  the  jjlaintiff.     The 
case   must   lie  decided   precisely   in   the  same  manner  as   if  this 
cause  had  come  on  before  those  bills  were  paid  by  the  garnishee. 
Your  verdict,  therefore,  must  be  for  the  plaintiff,  to  the  amount 
of  the  effects  acknowledged  by  the  garni^-hee   to  have  been  in 
his  hands,  indejMjndent  of  tho^e  bills."  ^ 

The  Supreme  Court  of  Pennsylvania  hold  the  same  general 
doctrine.  Chief  Justice  Gibson  thus  expressed  his  views:  "A 
cross  demand  against  the  defendant  in  an  attachment  may  be  set 
off  by  the  garnishee,  as  it  may  by  a  defendant  in  any  other  suit, 

1  Taylor  r.  Gardner,  2  Washington,  C.  C  488. 

[491] 


§  688  GARNISHEE'S   RIGHT   OF   DEFENCE  [CHAP.  XXXVI 

but  subject  to  tlio  same  rules  and  restrictions  ;  and  a  defendant 
may  nut  set  off  a  demand  acquired  after  the  action  was  instituted. 
Nor  may  a  plaintiflf  give  evidence  of  a  cause  of  action  incomplete 
at  tlie  impetration  of  the  writ.  But  set-off  is  in  substance  a 
cross  action  ;  and  a  cross  demand  also  must  have  been  complete 
when  the  action  was  instituted.  In  this  respect  the  parties  stand 
on  equal  ground.  Neither  is  allowed  to  get  the  whip  htvid  and  some 
the  other  in  costs,  hy  starting  before  he  was  ready .^^  * 

§  687.  It  may  not  unfrequcntly  become  a  question,  whether  the 
set-off  claimed  hy  the  garnishee  was  acquired  before  or  after  the 
garnishment.  In  such  case,  there  is  no  presumption ;  but  the 
garnishee,  alleging  the  existence  of  the  set-off  before  the  garnish- 
ment, must  support  his  allegation  with  proof."  If  the  set-off  was 
acquired  by  the  garnishee  after  the  garnishment,  it  cannot  avail 
him  as  against  his  liability  to  the  defendant.^ 

§  688.  In  regard  to  set-offs  the  Supreme  Court  of  Massachusetts 
seem  always  to  have  entertained  an  expansive  and  equitable  view 
of  the  rights  of  garnishees.  There,  as  we  have  seen,*  if  the 
defendant  l)cfore  final  answer  becomes  indebted  to  the  garnishee, 
on  any  contract  entered  into  before  the  garnishment,  the  gar- 
nishee's right  of  set-off  exists.  It  is  also  held  to  be  clearly  the 
construction  of  the  trustee  process  in  that  State,  that  where  one 
is  chargeable  in  consequence  of  being  the  debtor  of  the  defeiulant, 
the  question  will  be,  whether  ho  holds  any  balance  upon  a  liquida- 
tion of  all  demands.  In  striking  such  balance  he  has  a  right 
to  set  off,  from  the  debt  which  he  acknowledges  he  owes  the 
principal,  any  demand  which  ho  might  set  off  in  any  of  the 
modes  allowed  either  by  statute  or  common  law,  or  in  any  course 
of  proceeding.^ 

The  following  intricate  and  interesting  case  occurred  in  that 
State. 

A.,  B.,  C,  D.,  E,,  and  F.,  owners  of  the  ship  Bristol,  were  sum- 
moned as  garnishees  of  ^Y.  k  W.,  to  whom  they  were  indebted 
in  the  sum  of  $  8,463.02.  But  it  appeared  that  W.  &  W.  were 
indebted  to  D.,  E.,  and  F.,  and  the  question  arose  whether  the 

1  Pennell  v.  Grubb,  13  Penn.  State,  552.  «  Ante,  §  685. 

2  Pennell  v.  Grubb,  13  Pcnn.  State,  552.  5  Smith  v.  Stearns,  19  Pick.  20. 

3  Dyer  v.  McHenry,  13  Iowa,  527. 

[402] 


CHAP.  XXX VI.]      AGAINST   HIS   LIABILITY   TO   THE  DEFENDANT.         §  688 

latter  could  set  off  the  indebtedness  of  W.  &  W.  against  their 
respect ive  proportion  of  liability  as  owners  of  the  Bristol,  to 
W.  <fc  W.  The  court,  on  this  subject,  take  the  following  ground. 
"  Tins  right  of  set-oil",  when  a  part  only  of  the  debtors  on  the 
one  side  arc  creditors  on  the  other,  was  formerly  doubted  ;  but 
is  now  wlU  established  in  courts  both  of  law  and  equity.  The 
right  in  the  case  at  bar  does  not  depend  on  any  statute  provisions, 
but  arises  fmni  the  nature  of  the  suit  into  which  the  trustee  is 
thus  incidentally  iatrotluced  as  a  party.  In  this  suit  he  is  called 
uixjii  to  answer  for  all  the  goods,  effects,  and  credits  of  the 
defendants  in  his  hands  ;  without  regard  to  the  nature  of  tho 
demands,  or  to  the  form  of  action  in  which  they  would  be  re- 
covered l)y  the  defendant,  and  even  if  they  should  be  of  several 
ditVerent  kinds,  reciuiring  flitlbrent  forms  of  action.  On  tiie  other 
hand,  he  is  to  l)e  allowed  all  his  demands  against  the  defendant, 
of  which  he  could  avail  himself  in  any  form  of  action,  or  any 
mode  of  proceeding  l)etwecn  himsflf  and  the  defendant;  whether 
by  way  of  setroff  on  the  trial,  as  provided  by  our  statutes  ;  or  by 
setting  off  the  judgments  under  an  order  of  court ;  or  by  setting 
off  the  executions  in  the  hands  of  the  sheriff,  as  is  also  provided 
l)y  statute.  If  this  were  not  so,  the  trustcMj  would  be  injured  by 
having  his  claims  thus  drawn  in,  to  l>c  settled  incidentally  in  a 
suit  between  strangers.  In  this  adjustment  of  their  mutual 
claims,  we  of  course  except,  on  ijoth  sides,  all  claims  for  uuliciui- 
dated  damages  for  mere  torts."  The  court  then  take  as  the  basis 
«)f  its  judgment  the  entire  indebtedness  of  the  owners  of  the 
IJristol  to  \V.  tt  W.,  and  as  the  result  of  the  |)Osition  just  quoted, 
direct  to  i»e  deducted  from  that  indekedness  all  that  was  duo 
from  W.  S:  W.  to  either  of  the  six  owners.  IJut  here  another 
quotion  arose.  It  will  be  rememl>ered  that  W.  &  W.  were  in- 
debted to  D.,  E.,  and  F.,  and  it  so  haj>pened  that  this  indebtedness 
was  not  to  either  D.,  E.,  or  F.,  alone,  but  to  eacli  of  them  jointly 
with  other  parties  not  concerned  in  the  proceedings.  Thus  D.  was 
owner  of  one  sixteenth  part  of  the  ship  India,  to  the  owners  of 
which  ship  W.  Jc  W.  were  indebted  in  the  sum  of  $5,332.76. 
So,  also,  was  E.  owner  of  the  same  part  of  the  same  ship.  F.  was 
owjier  of  one  eighth  jiart  of  the  ship  Lydia,  to  the  owners  of 
winch  ship  W.  &  W.  were  indebted  in  the  sum  of  8  7,'>»J0.  Now, 
the  proportion  of  D.,  E.,  and  F.,  in  the  debt  of  the  Bristol  to 
W.  &  W.,  was  S1,410..J0.     The  proportion  of  D.  and  E.,  each, 

[40;}] 


§  688  GARNISHEE'S   RIGHT   OF   DEFENCE  [cHAI*.  XXXVI- 

in  the  dcl)t  of  W.  &  W.  to  tlie  owners  of  the  India  was  8333.29; 
and  the  proportion  of  F.  in  the  debt  of  AV.  &  W.  to  the  owners 
of  the  Lydia  was  $945.  D.,  E.,  and  F.,  each,  claimed  to  deduct 
from  tlie  -S  1,410.50  their  respective  proportionate  shares  of  tho 
debts  due  from  W.  &  W.  to  the  owners  of  the  India  and  tho 
owners  of  tlie  Lydia,  as  aforesaid.  On  this  point  the  court  say  : 
"Now,  as  neither  D.,  E.,  nor  F.  could  have  brought  an  action 
against  W.  &  W.  for  the  proportion  due  to  each  of  them,  as  j>art 
owners  of  the  sliips  India  and  Lydia,  respectively,  it  seems  diHicult 
to  set  off  tliat  i)roportion  against  the  claims  of  W.  &  W.  On  the 
other  hand,  it  is  an  invariable  princij)le,  in  every  suit  of  this 
kind,  that  the  trustee  shall  not  be  prejudiced  by  being  made  a 
party  in  a  suit  between  strangers  ;  and  it  would  be  highly  preju- 
dicial and  injurious  to  him,  if  he  were  compelled  to  pay  money, 
as  due  to  one  of  the  parties  in  the  suit,  when  that  same  party 
was  indebted  to  him  in  anotiier  sum  which  lie  might  be  unable 
to  pay."  The  court  proceed  witli  the  argument  of  the  case,  and 
finally  arrive  at  the  conclusion  expressed  in  tlie  following  lan- 
guage :  "  In  this  suit  a  demand  is  made  on  the  trustee,  without 
any  regard  to  technical  forms,  to  pay  whatever  effects  of  tho 
defendant  he  may  have  in  his  hands  ;  and  those  effects  are  only 
what  remains,  after  deducting  all  that  he  could  retain  or  set  off, 
hi  any  lawful  mode  of  adjustment  between  himself  and  tiio 
defendant,  without  regard  on  his  part  to  mere  technical  forms. 
Tlie  legislature  certainly  intended  that  all  just  and  reasonable 
allowances  should  be  made  to  the  trustee,  to  protect  him  from 
injury  ;  and  it  is  our  business  to  make  the  forms  of  proceeding 
yield,  in  every  case,  to  the  princij»les  of  law  and  justice;  and 
not  to  leave  the  will  of  the  legislature  unaccomplished,  from  a 
scrupulous  adherence  to  technical  rules.  The  parties  will  com- 
pute the  amount  due  from  each  of  the  trustees,  after  allowing, 
according  to  these  principles,  the  set-offs  claimed  by  each  ;  and 
the  judgments  will  be  entered  accordingly."  ^ 

A  later  case  was  decided  on  principles  of  as  free  equity  as  that 
just  considered.  A  testator  devised  and  bequeathed  all  his  prop- 
erty to  W.,  on  condition  that  he  should  pay  all  the  testator's  debts, 
and  the  legacies  given  by  his  will;  and  he  also  appointed  W. 
executor  of  his  will.  Among  the  legacies  was  one  of  8  200  to  R., 
which  was  to  be  paid  in  two  years  after  the  testator's  decease. 

^  Hathaway  v.  Russell,  16  Mass.  473. 

[494] 


CHAP.  XXXM]      against   HIS   LIABILITY   TO   THE   DEFENDANT.         §  689 

"When  the  will  was  ma<le,  the  te'stator  held  several  promissory 
notes  aj^aiiist  R.,  ainomiting  to  8 -^'22,  which  were  over  due.  W. 
accepted  the  devise  and  hequest  made  to  him,  hut  declined  the  trust 
of  executor ;  and  administratiou  on  the  testator's  estate,  with  the 
will  annexed,  was  granted  to  a  third  person.  G.  hiought  an 
action  against  R.,  and  summoned  W.  as  R.'s  trustee  ;  and  it  was 
held,  that  R.'s  notes,  though  jjayable  to  tlic  testator,  and  in  form 
to  be  collected  in  the  name  of  his  legal  representative,  were  really 
tlie  property  of  tlie  defendant,  and  were  a  valid  set-otT,  in  the 
hands  of  W.,  against  the  amount  which  ho  was  bound  as  legatee 
to  pay  to  R.,  and  being  greater  in  amount  than  the  legacy  duo  R. 
from  W.,  the  latter  was  not  liable  as  trustee.^ 

§  088  (1.  While  the  garnishee's  right  of  set-ofT  is  ordinarily 
unquestionable,  he  may  sustain  such  a  relation  to  the  defendant, 
and  to  the  moneys  of  the  defendant  in  his  hands,  as  to  deprive 
l«m  of  that  rigiit.  Thus,  where  a  president  of  a  corporation  was 
also  a  banker,  and  became  the  depositary  of  the  corporation's 
money,  while  he  held  a  large  amount  of  its  over-due  bonds ;  and, 
to  avoid  l)eing  charged  as  its  garnishee,  he  attempted  to  set  off 
some  of  those  l)onds  against  his  liability  as  depositary  ;  it  was  held, 
that  "  it  would  be  a  breach  of  the  confidcnco  reposed  in  him  as 
de|K)sitary,  as  president,  and  as  co-corporator,  for  him  to  take  such 
an  advantage  of  his  jmsition  "  ;  and  he  was  charged  as  garnishee. - 

§  080.  In  Vermont''  and  in  Alal>ania,  it  has  been  h.:ld  that  a 
garnishee  cannot  avail  himself  of  an  e<iuital)le  claim  against  the 
defendant  Ity  way  of  set-olT.  Therefore,  where  the  garnislieo 
had  in  his  hands  a  sum  of  money  belonging  to  the  defendant, 
being  a  balance  of  the  proceeds  of  pro|K!rty  conveyed  to  him  in 
trust  to  secure  a  debt  due  to  him,  but  insisted  upon  his  right  to 
appropriate  that  l)alanco  to  the  payment  of  a  note  made  by  tlie 
defendant  to  S.  <t  Co.,  and  by  S.  &  Co.  transferred  to  the  gar- 
nishee, but  without  indorsement,  whereby  oidy  the  equitaljle  title 
to  the  note  was  vested  in  the  garnishee,  while  the  legal  title  still 
remained  in  S.  <fe  Co. ;  it  was  held  by  tlie  Supreme  Court  of 
Alal)ama,  that  the  garnisjjee  having  only  an  equity,  could  not 
aviiil  himself  of  it  as  a  set-off.     The  court  in  giving  their  opinion 

»  Green  i-.  Nelson.  12  Metcalf,  567.  «  Wdler  r.  Weller,  18  Vermont,  55. 

^  Fox  V.  Reed,  3  Grant,  81. 

[495] 


§  689  a  GARNISHEE'S   RIGHT   OF   DEFENCE  [CHAP.  XXXVI. 

use  the  following  language:  "It  is  certainly  true  that  the  plain- 
tiff in  the  gurnislunent,  l)eing  suhistitutod  to  the  legal  rights  of 
his  debtor,  to  he  enforced  in  this  summary  way,  cannot  maintain 
this  proceeding  to  recover  an  erpiitahle  demand,  —  one  njK^n  which 
the  debtor  could  not  have  maintained  his  action  at  law.  The 
same  principle  which  would  limit  the  plaintilT  to  a  legal  ground 
of  action  would  equally  apply  to  the  defendant,  —  he  must  bo 
confined  to  such  defences  as  he  could  have  made,  had  liis  debtor, 
instead  of  the  creditor  of  liis  debtor,  instituted  legal  proceedings 
against  him.  Tiiis  would  seem  to  result  from  the  want  of  adapta- 
tion in  the  forms  of  the  court  of  law  to  do  comj)leto  equity 
between  the  ])arties.  If  the  defendant  could  be  allowed  to  set 
up  nn  e(iuilable  defence,  while  the  jilaintilT  was  confined  down 
to  his  legal  right  of  action,  there  would  seem  to  be  a  want  of 
mutuality  in  the  proceeding,  and  the  greatest  injustice  might 
sometimes  be  done.  The  plaintilT  might  have  an  equitable  de- 
mand which  would  countervail  that  set  up  by  the  defendant,  yet 
he  would  be  unable  to  subject  the  legal  demand,  inasnnich  as  tho 
defendant  could,  and  he  could  not,  set  up  his  equitable  one. 
Besides,  in  many  cases  it  would  be  impossible  for  the  court  of 
law  to  adjust  properly  the  equities  between  the  i)arties,  oven  if  it 
possessed  the  jurisdiction,  .^uch  a  jiractice  of  blending  the  legal 
and  equitable  jurisdiction  of  the  courts,  would,  under  their  present 
organization,  introduce  the  greatest  confusion,  uncertainty,  and 
difficulty.  The  view  we  take  is,  we  think,  clearly  indicated  by 
the  whole  tenor  of  our  decisions,  and  must  be  sustained  so  long 
as  the  jurisdiction  of  courts  of  equity  is  kept  distinct  from  that 
of  the  law  courts.  If  S.  k  Co.,  the  payees  of  the  note,  retained 
the  legal  title,  it  is  well  settled,  that,  had  the  defendant  instituted 
his  action  of  assumpsit,  to  recover  from  the  garnishee  the  balance 
due  after  satisfying  the  mortgage  deed,  the  latter  could  not  have. 
set  off  the  amount  of  the  note  to  S.  k  Co.  in  such  suit,  however 
strong  may  have  been  his  equity.  We  think  he  stands  in  tho 
same  condition  with  respect  to  the  plaintiff  in  the  garnishment. 
If  he  has  a  set-off  wiiich  is  equitable,  he  must  assert  it  in  a  court 
of  equity,  where,  for  aught  we  can  know,  it  may  be  rebutted  or 
repelled,  and  countervailed  by  superior  equities."  ^ 

§  689  a.   The  right  of  the  garnishee  to  deduct  from  his  liability 

1  Loftin  V.  Shackleford,  17  Alabama,  -155  ;  Self  v.  Ivirklaud,  24  Ibid.  275. 
[49G] 


CHAP.  XXXVI.]      AGAKST   HIS   LIABILITY   TO   THE  DEFENDANT.         §  C90 

to  defendant,  is  not  confined  to  matters  which  come  under  the 
technical  designation .  of  set-off.  Any  damages  which  he  may 
show  himself  entitled  to  recover  of  the  defendant,  and  which 
arise  out  of  the  same  transaction  or  contract  in  respect  to  which 
the  plaintiff  seeks  to  make  the  garnishee  liable,  may  be  so  de- 
ducted. The  garnishment  cannot  deprive  him  of  the  benefit  of 
recoupment,  or  any  like  defense.^ 

§  GOO.  We  have  considered  only  those  cases  in  which  the  gar- 
nishee is  huiehted  to  the  defendant.  His  position  is  different 
where  it  is  sought  to  charge  him  in  respect  of  property  of  tho 
defeiidant  in  his  hands.  There  the  question  of  his  right  to  set-off 
will  depend  on  the  fact  whether  he  has  any  lien,  legal  or  equitable, 
ui)on  the  property,  or  any  right  as  against  the  defendant,  by 
contract,  by  custom,  or  otherwise,  to  hold  the  property,  or  to 
retain  possession  of  it  in  security  of  some  debt  or  claim  of  his 
own.  If  he  has  a  mere  naked  possession  of  the  property  without 
any  special  property  or  lien  ;  if  the  defendant  is  the  owner,  and 
has  the  present  right  of  possession,  so  that  he  miglit  lawfully 
take  it  out  of  the  custody  of  the  garnishee,  or  authorize  another 
to  do  so,  then  the  property  is  bound  by  the  attachment  in  the 
hajids  of  tho  garnishee,  and  he  has  no  greater  right  to  charge  it 
witii  a  debt  of  his  own  l)y  way  of  set-off,  than  he  would  have  had 
if  the  goods  had  been  taken  into  custody  Ijy  the  officer,  at  tho 
time  of  the  attachment.^ 

»  Powdl  v.  Summons.  31  Alalmm*,  552;  Faxon  v.  Mansfield.  2  Mas*.  147;  Rankin 
r.  Simoml'*.  27  Illinoi.s,  .152. 
-  AUtii  V.  Hall,  5  Mctcalf.  263. 

as  [-1371 


§  G92  GARNISHEE'S  RELATION  TO  THE  MAIN  ACTION.      [CHAP.  XXXVU. 

CHAPTER    XXXVII. 

THE   garnishee's    RELATION    TO    THE    MAIN    ACTION. 

§  G91.  When  one  is,  by  garnis^limcnt,  involuntarily  made  a  party 
to  a  suit  in  which  he  has  no  j)crsonal  interest,  he  should  l)c  in  law 
fully  protected  by  the  proceedings  against  him.  As  has  been  often 
remarked,  a  garnishee  is  a  mere  stakeholder  between  the  plaintiff 
and  the  defendant,  having  in  his  hands  that  which  the  law  may 
take  to  pay  the  dclendant's  debt,  in  the  event  of  a  recovery  by  the 
plaintiff,  or  which  he  may,  if  no  such  recovery  be  had,  be  rcqiiired 
to  pay  or  deliver  to  the  defendant.  lie  stands  in  a  position  in 
which  he  cannot  act  voluntarily,  without  danger  to  his  own  inter- 
ests. If  he  voluntarily  pay  his  debt  to  the  defendant,  after  tho 
garnishment,  we  have  seen  that  such  a  payment  will  not  protect 
him  against  a  judgment  in  the  attachment  suit.*  So,  on  the  other 
hand,  a  voluntary  payment  to  the  plaintiff  will  not  devest  the  de- 
fendant's right  of  action  against  him.  Any  payment  he  may  make 
to  the  i)laintiff,  without  the  authority  or  consent  of  the  defendant, 
will  be  regarded  in  law  as  voluntary,  unless  made  under  legal 
compulsion,  in  the  manner  i)rescribed  by  law.  Hence  there  is  a 
necessity,  as  well  as  great  propriety,  that  the  garnishee  should  be 
enabled  to  ascertain  whether  the  jn'oceeding  against  him,  if  carried 
to  fruition,  will  constitute  a  protection  to  him  against  a  second 
payment  to  the  defendant.  The  principles,  therefore,  connected 
with  the  garnishee's  relation  to  the  main  action,  will  now  receive 
attention. 

§  G92.  This  subject  presents  itself  primarily  in  two  distinct 
aspects:  1.  Where  the  defendant  is  personally  served  with  pro- 
cess; and  2.  Where  the  proceeding  is  ex  parte,  without  any 
service  of  process  on,  or  appearance  by,  the  defendant,  and  where 
jurisdiction  is  acquired  over  him  through  an  attachment  of  his 
property. 

In  the  first  case,  the  jurisdiction  obtains  through  the  service  of 
the  process  on  the  defendant:  the.attachment  is  not  the  founda- 

1  Ante,  §  674. 
[498] 


CHAP.  XXXVIl]      GARNISHEE'S  RELATION  TO  THE  MAIN  ACTION.         §  694 

tion  of  the  jurisdiction,  but  a  provisional  remedy  allowed  to  the 
plaintiff  for  the  purpose  of  securing  his  demand. 

In  the  second  case,  tlie  attachment  is  the  basis  of  the  jurisdic 
tion.  If  it  be  issued  without  legal  authority,  any  proceeding* 
under  it  are  coram  non  judice  and  void. 

In  the  former  case,  though  the  attachment  were  illegally  issued, 
yet  it  is  the  privilege  of  the  defendant  alone  to  take  advantage  of 
it,  and  if  he  waive  the  illegality,  and  the  effects  in  the  garnishee'? 
hands  are  subjected  to  the  payment  of  his  debt,  the  defendant  is 
concluded  by  the  judgment  of  the  court,  and  cannot  afterwards 
question  its  sufficiency  to  protect  the  garnishee.^ 

Where,  however,  the  defendant  is  not  personally  a  party  to  the 
proceeding,  it  is  different.  In  such  case  he  has  a  right  afterwards 
to  knuw  that  his  pn>|»erty  has  been  taken  conformably  to  law  ;  and 
if  it  l)e  not  so  taken,  his  interest  in  it  is  not  devested.  If  taken 
by  a  court  of  comj>etent  jurisdiction,  upon  a  legal  case  presented 
for  the  exercise  of  its  jurisdiction,  though  the  proceedings  be  ir- 
regular, and  therefore  voidable,  they  will  be  conclusive  upon  him 
until  reversed,  and  any  rights  of  projMjrty  acquired  through  them 
will  be  sustained.  IJut  if  the  court  have  no  jurisdiction  of  the 
matter,  or  if  jurisdiction  Ix;  exercised  without  any  legal  founda- 
tion l>eing  laid  for  it,  the  whole  proceeding  is  void,  and  \\\q  de- 
fendant's projH'rty  is  not  alienati-d  through  it.  His  rights  exist, 
to  every  intent,  as  if  the  proceeding  had  never  taki-n  phice.^ 

§  Gl*;5.  From  these  giMieral  projHjsitions  the  following  conclu- 
sions are  drawn:  1.  That  where  the  defendant  is  personally 
before  the  court,  the  garnishee  is  not  interested  either  in  the  juris- 
dictional legality  of  the  jiroceedings,  or  in  their  practical  regularity, 
a»  affdinnf  fht'  drfrmhint ;  and  2.  That  where  the  defendant  is  not 
personally  l»efore  the  court,  the  garnishee  is  concerned  only  in  the 
question  of  jurisdiction  ;  for  if  that  has  attached,  and  the  judg- 
ment of  the  court  will  be  conclusive  as  to  the  rights  of  property 
acquired  through  the  attachment,  he  will  be  fully  protected  by  a 
payment  made  by  him  while  the  proceedings  stand  in  force. 

§  694.  But  though,  where  the  defendant  is  before  the  court  in 
person,  the  garnishee  is  not  concerned  in  the  question  of  jurisdic- 
tion over  him,  yet  he  is  directly  interested  in  the  question  of  juris- 

1  Fcatheriiton  >'.  CoraDton,  3  LouUiaoa  Aaaaal,  380.  '  Ante,  §  84. 

[490] 


§  GOG         GARNISHEE'S  RELATION  TO  THE  MAIN  ACTION.      [cilAl*.  XXXNTI. 

diction  over  himself.  The  court  may  have  power  to  hear  and 
dctcrniiuo  the  main  action,  but  none  over  the  garnishee  ;  in  which 
case  if  tiie  gariiislieo  submit  to  the  jurisdiction,  and  make  jtayment 
under  it,  it  will  avail  him  nothing.  Thus,  for  instance,  if  the  law 
declare  that  a  municipal  corporation  shall  not  be  subjected  to  gar- 
nishment, and,  notwithstanding,  such  a  corporation  be  garnished, 
it  matters  not,  that  the  court  has  jurisdiction  of  the  defendant, 
and  that  he  is  before  the  court  personally ;  it  has  no  jurisdiction 
of  the  garnishee;  and  if  the  corporation  submit  to  the  jurisdiction, 
it  will  be  in  its  own  wrong,  and  the  judgment  of  the  court  will, 
therefore,  be  no  protection.  So,  if  the  law,  as  in  Massachusetts, 
declare  that  no  person  shall  be  garnished  in  an  action  of  rejjlevin, 
or  in  an  action  on  the  case  for  malicious  prosecution,  or  for  slan- 
der, or  in  an  action  of  trespass  for  assault  and  battery,  and  yet  a 
garnishee  be  summoned  in  such  an  action,  if  he  sul)mit  to  the 
jurisdiction,  it  will  be  equally  iji  his  own  wrong.  But  if  the  gar- 
nishee raise  the  question  of  jurisdiction,  and  it  is  decided  against 
him,  and  the  court  proceeds  to  assert  its  jurisdiction  by  rendering 
judgment  against  him,  a  compulsory  payment  under  that  judgment 
will  protect  him  against  a  subsequent  action  by  the  attachment 
defendant.^ 

§  695.  It  follows  hence,  that  a  garnishee  must,  for  his  own 
protection,  inquire,  first,  whether  the  court  has  jurisdiction  of  the 
defendant,  and  next,  whctlier  it  has  jurisdiction  of  himself.  If 
the  jurisdiction  exists  as  to  both,  he  has  no  concern  as  to  tho 
eventual  protection  wliich  the  judgment  of  the  court  will  atlbrd 
him :  it  will  be  complete. 

§  696.  Such  are  the  principles  which  are  considered  to  govern 
this  subject.  We  will  briefly  present  their  operation,  as  exhibited 
in  the  reported  cases.  In  Mississippi,  the  statute  declared  that 
"every  attachment  issued  without  bond  and  affidavit  taken  and 
returned,  is  illegal  and  void,  and  shall  be  dismissed."  There,  it 
was  held,  upon  writ  of  error  sued  out  by  a  garnishee,  not  onl}' 
that  a  judgment  against  a  garnishee,  where  such  bond  and  affidavit 
had  not  been  taken  and  returned,  was  erroneous,  because  the  pro- 
ceedings were  illegal  and  void ;  ^  but  that  such  a  judgment  was  no 

1  Gunn  V.  Howell,  35  Alabama,  144. 

2  Oldham  v.  Ledbetter,  1  Howard  (Mi.),  43;  Berry  v.  Anderson,  2  Ibid.  649;  Ford 
V.  Woodward,  2  Smedes  &  Marshall,  260. 

[500] 


CHAP.  XXXVII.]      GARNISHEE'S  RELATION  TO  THE  MAIN  ACTION.         §  696 

bar  to  a  subsequent  action  by  the  defendant  against  tbe  garnishee.^ 
In  Indiana,  a  judgment  rendered  by  a  justice  of  tbe  peace  against 
an  executor,  as  garnisliee,  was  decided  to  be  no  protection  to  bim, 
because  tbe  .statute  proliibited  a  justice  of  tbe  peace  from  exercis- 
ing jurisdiction  in  any  action  against  an  executor.^  In  Alabama, 
on  error  by  tbe  garnisbce,  a  judgment  against  bim  was  reversed, 
because  tbe  officer  wbo  issued  tbe  attacbmcnt  bad  no  jurisdictional 
rigbt  to  issue  it,  and  tbe  attacbment  was  tberefore  void.^  In  Ten- 
nessee, it  was  decided  tbat  a  garnisliee  migbt  plead  in  abatement 
tbat  neitber  tbe  j)laintilT  nor  tbe  defendant  was  a  citizen  of  tbat 
State,  in  wbicb  state  of  ca.se  tlie  court  liad  no  jurisdiction.*  In 
Louisiana,  it  was  beld,  tbat  a  garnisbce  migbt  plead  tbat  tbe  law 
under  wbicb  tbe  proceeding  against  tbe  defendant  was  conducted 
bad  been  repealed,  and  tberefore  tbat  tbe  court  was  witbout  juris- 
diction.* In  Kentucky,  it  was  decided  tbat  a  judgment  against  a 
garnisbce  in  an  attacbment  proceeding,  instituted  contrary  to  law, 
in  a  county  not  tbe  defendant's  residence,  and  in  wbicb  be  bad  not 
resided,  was  no  protection  to  tbe  garnisliee.^  Tbe  obvious  princi- 
ple upon  wiiicli  tbese  and  all  similar  cases  stand  is,  tbat,  as  a  judg- 
ment against  a  garni.^bee  must  be  founded  upon  a  valid  jmigment 
against  ibo  defendant,  tbere  can  l)e  no  sucb  foundation,  wbore  tbe 
judgment  against  tlie  defendant  is  unautliorized  and  void.' 

Ill  Marylaml,  it  is  accorded  to  tbe  garnisbce  to  dispute  tbe  trutii 
of  tbe  ^aound  ujmju  wbicb  tbe  attacbment  issued,  by  way  of  sbow- 
ing  cause  wby  be  sbould  not  be  cbarged.  Tbis  is  upon  tbe  idea 
tbat  if  tbe  alleged  ground  of  attiicbment  be  untrue,  tbe  court 
lias  no  jurisdiction  of  tbe  proceeding  by  attacbment ;  and  tbat 
tbe  garnisliee  must  bave  a  rigbt  to  deny  tbe  existence  of  facts, 
wbicb  tbe  statute  declares  must  exist  in  order  Uj  give  juris- 
diction.* 

'  For!  r.  Ilurd,  4  Smedcs  &  Marshall,  683. 

2  Harmon  r.  Hinlmni,  8  IJlaikford,  418. 

■  Dew  F.  Hank  of  Alal.ama,  9  Alabama,  323. 

*  Webb  I.  Lva,  6  Yer;.i,r,  473. 

'  Feathcrston  v.  Compton,  8  Louisiana  Annnal,  285. 

•  RolxTtson  P.  Robertji,  1  A.  K.  Marshall,  247. 

7  Pierce  r.  Carlcton,  12  Illinois,  358;  Atchcson  r.' Smith,  3  B.  Monroe,  502;  White- 
hcid  r.  llendcrson,  4  Smedcs  &  Marshall,  704 ;  Matthews  r.  Sands,  29  Alabama,  136 ; 
Flash  r.  Paul,  Ibid.  141  ;  iJesha  r.  Baker,  3  Arkansas,  509;  Lovejoy  v.  Albree,  33 
Maine,  414;  Kdrin^rton  r.  All»brf>oks,  21  Texas,  186. 

"  Barr  r.  Perry,  3  Gill,  313.  In  this  State  it  is  also  held  that  the  jrarnishee  may  ob- 
ject to  the  irrHjitlan'ti/  of  the  proceedings  against  the  defendant ;  but  it  is  nowhere  else 
BO  laid.     Stone  r.  Magruder,  10  Gill  &  Johnson,  383. 

[501] 


§  6y7  GARN'ISIIKLS  KKLATION  TO  TUE  MAIN  ACTION.      [ciIAI'.  XXXVIL 

§  GOT.  When,  however,  tlie  jurisdiction  of  the  court  over  l»oth 
the  defendant  and  the  garnishee  has  attached,  the  right  of  the  lat- 
ter to  inquire  into  or  interfere  with  the  proceedings  in  the  main 
action  is  at  an  end;  for  all  that  he  is  interested  in  is,  that  the 
attachment  proceedings  against  himself  shall  protect  him  against 
a  second  payment.  Tiiat  they  will  do  so,  though  there  he  in  them 
errors  and  irregularities  for  which  the  defendant  might  obtain 
their  reversal,  there  can  be  no  doulit.^  It  has,  therefore,  been 
always  held,  that  a  garnishee  cannot  avoid  or  reverse  a  judgment 
against  him,  on  account  of  mere  irregularities  in  the  proceedings 
in  the  main  action.  They  affect  only  the  defendant,  who  alone  can 
take  advantage  of  them.^  Nor  can  he  inquire  into  tiie  merits  of 
the  cause,  as  between  the  j)laintitr  and  the  defendant;^  or,  after 
judgment  against  the  defendant,  show  that  the  plaintiiriiad  no  just 
demand  against  the  defendant,  or  that  the  judgment  ought  to  be 
altered  or  reversed.*  Nor  has  he  any  such  relation  to  the  main 
action   as  will   entitle    him,  after  judgment  has   been    rendered 

^  Atchcson  V.  Smith,  3  B.  Monroe,  502;  rx)merson  v.  IIiifTmnn,  4  Zabriskic,  674; 
Pierce  v.  Carlcton,  I'i  Illinois,  358;  Houston  v.  Wiilcott,  I  Iowa,  86;  Stobhins  r.  Fitrh, 
1  Stewart,  180;  Th(»ni|(son  >;.  Allen,  4  Stewart  i  I'orter,  184;  (junn  r.  Howell,  35 
Alabama,  144;  O'Connor  i'.  O'Connor,  2  Urant,  245;  Schoppvnhaiit  i'.  Bollman,  '2\ 
Indiana,  280. 

■^  Stebbins  r.  Fitoh,  1  Stewart,  180;  Parmer  i-.  Hallani,  3  Ibid.  326;  Thomi)son  r. 
Allen,  4  Stewart  &  Porter,  184 ;  Smith  r.  Chapman,  6  Porter,  365  ;  St.  Lotii.s  Perjiet- 
ual  Ins.  Co.  v.  Cohen,  9  Missouri,  421  ;  Honston  r.  Walcott,  1  Iowa,  86;  Mathenv  «•. 
Galloway,  12  Smedes  &  Marshall,  475;  Whiteheail  r.  Henderson,  4  Ibid.  7i>4;  Fla.sh 
V.  Paul,  29  Alabama,  141  ;  Camlarl'ord  r.  Hall,  3  M'Cord,  345;  Foster  r.  Jones,  1  Ibid. 
116;  Chamliers  r.  KeKee,  1  Hill  (S.  C),  229;  Lindau  r.  Arnold,  4  Stroiduirt,  290  ; 
Cornwell  i".  Ilunpite,  1  Indiana,  156.  In  Ser;:eant  on  Attaeliment,  p.  Ion,  it  is  said  • 
"  On  this  plea  of  nulld  bona,  the  {jarnishee  may  lake  advantai,'e  of  the  irre;;ularitv  of 
the  plaintiff's  proecedinj^s  in  enterinj^  jud;;ment  against  the  di-fendant  in  the  attach- 
ment, without  havin;;  executed  a  writ  of  inquiry,  when  the  dirlaration  was  in  .-l.s,<n/m/>- 
sit" ;  and  reference  is  made  to  the  case  of  Pancake  v.  Harris,  10  Serg.  &  Hawle,  109 
It  is  conceived  that  his  statement  is  not  sustained  by  the  case  as  rejK)rted.  It  docs  not 
appear  that  the  frarnishce  made  the  point  which  controlled  the  decision  ;  but  we  are 
authorized  to  infer  that  the  court,  ex  iiiero  motu,  ruled  the  jdaintiff  out,  on  a  point  of 
practice.  The  plaintiff  had  not  perfected  his  jud;:ment  a;;ainst  the  defendant,  bv  an 
ascertainment  of  the  amount,  without  which  it  was  clearly  impracticable  for  a  juil;,'ment 
to  be  rendered  against  the  <:arnishee;  since  it  is  well  settled,  that  a  jud-ment  against 
the  defendant  is  an  indispensable  prerequisite  to  a  judgment  against  the  garnishee.  It 
was  expressly  on  the  ground  that  the  plaintiff  had  not  j)erfected  his  judgment  against 
the  defendant,  or,  in  other  words,  had  obtained  only  an  interlocutory,  and  not  a  tinal, 
judgment,  that  the  decision  was  given. 

3  Hanna  v.  Lauring,  10  Martin,  563;  Kimball  i-.  Plant,  14  Louisiana,  511  ;  Frazier 
V.  Willcox,  4  Robinson  (La.),  517;  Erode  v.  Firemen's  Ins.  Co.,  8  Ibid.  244;  Planters 
and  Merchants'  Bank  v.  Andrews,  8  Porter,  404. 

*  Woodbridge  i'.  Wintlirop,  1  Root,  557  ;  Heffeman  v.  Grvmes,  2  Leigh,  512 ;  Lee  v. 
Palmer,  18  Louisiana,  405;  Bank  of  Northern  Liberties  v.  Munford,  3  Grant,  232. 
[502] 


CHAP.  XXXVII.]      GARNISHEE'S  RELATION  TO  THE  MAIS  ACTION.         §  698 

against  him,  to  interfere  in  any  arrangement  between  the  plaintiff 
and  defendant.  He  is  not  an  assignee  of  the  judgment  against 
the  defendant,  nor  has  he  any  lien  upon  it ;  but  in  relation  to  it 
stands  as  an  entire  stranger.^  But  where  the  judgment  against 
the  defendant  is  invalid,  the  garnishee  may,  in  any  stage  of  the 
proceedings  prior  to  judgment  against  himself,  take  advantage  of 
that  invalidity  to  prevent  such  judgment.^ 

8G98  In  Louisiana,  however,  a  garnishee  was  allowed  to 
show,  as  a  rea^^on  why  judgment  should  not  be  rendered  against 
him  tliat  before  judgment  was  rendered  against  the  defendant, 
the  defendant  was  dead.  This  was  upon  the  ground  that  the 
attaching  creditor  would,  in  such  case,  if  the  garnishee  should  be 
charged,  obtain  a  preference  over  other  creditors  of  the  deceased, 
not  jTuthorized  by  the  laws  of  that  State.^ 

»  Uraynard  r.  Burpee.  27  Vermont,  616. 

"  Thayer  v.  Tyler,  10  Gruy,  164. 

•  AllarU  a.  Dt'Brot,  15  Louisiana,  253.  r503"l 


§  700  WHERE   ATTACHMENT   IS   A   DEFENCE,      [cHAf    XXXVIII. 

CHAPTER    XXXVIII. 

WHERE  ATTACHMENT  IS  A  DEFENCE,  AND  THE  MANNER  OF  PLEADING  IT. 

§  699.  The  operation  of  an  attachment,  against  a  garnishee,  is 
compulsory.  He  has  no  choice  but  to  pay,  in  obedience  to  the 
judgment  of  the  court  to  whose  jurisdiction  he  has  been  subjected  ; 
and  the  exercise  of  that  jurisdiction  effects  a  confiscation,  for  the 
plaintiff's  benefit,  of  the  debt  due  from  the  garnishee  to  the  de- 
fendant. In  this  proceeding  it  is  an  invariable  rule,  that  the 
garnishee  shall  not  be  prejudiced,  or  placed  in  any  worse  situation 
than  he  would  have  been  in  if  he  had  not  been  subjected  to  gar- 
nishment; that  is,  if  obliged,  as  garnishoe,  to  pay  to  the  {)hiintiff 
the  debt  he  owed  to  the  defendant,  he  shall  not  be  compelled  again 
to  pay  tlie  same  debt  to  the  defendant.  "When,  therefore,  he  is  sued 
for  that  debt,  cither  before  or  after  he  has  been  summoned  as 
garniiihee,  he  must  be  allowed  to  show  that  he  has  been,  or  is 
about  to  be,  made  liable  to  pay,  or  has  paid,  the  debt,  under  an 
attachment  against  the  defendant,  in  which  he  has  been  charged 
as  garnishee.  To  what  extent  this  defence  will  avail  him,  and 
how  he  may  take  advantage  of  it,  will  constitute  the  subject  of 
the  present  chapter,  and  will  be  considered  in  reference,  I.  To 
the  case  of  garnishment  prior  to  or  pending  suit  brought  by  the 
defendant;  and,  II.  To  the  case  of  suit  brought  after  judgment 
against  the  garnishee. 

§  700.  I.  Where  the  Garnishment  is  prior  to  or  pendinr/  suit 
brought  by  Defendant.  In  England,  the  doctrine  has  long  been 
held,  that  where  one  has  been  summoned  as  garnishee,  and  the 
defendant  in  the  attachment,  before  judgment  of  condemnation  of 
the  debt,  sues  the  garnishee  for  that  debt,  the  latter  may  plead  the 
attachment  in  abatement;^  but  not  in  bar,  until  judgment  be 
recovered  against  him.^ 

The  courts  in  this  country  seem  with  unanimity  to  have  taken 
the  same  view.  The  question  early  came  up  in  New  York,  in  a 
case  where  a  citizen  of  Baltimore  was  summoned  as  garnishee  at 
that  place,  and  afterwards,  on  going  to  New  York,  was  siied  by  the 

1  Brook  V.  Smith,  1  Salkeld,  280. '  -  Natlian  v.  Giles,  5  Taunton,  5r)8. 

[oO-4] 


CHAP.  XXXVIII.]      AND   THE   IIANNER   OF   PLEADING   IT.  §  701 

defendant  in  the  attachment  suit,  and  pleaded  the  attachment.  It 
was  agreed  in  the  case  that  if  the  court  should  consider  the  plea 
good,  either  in  abatement  or  bar,  the  phiint iff  should  be  nonsuited. 
Kent,  C.  J.,  after  noticing  the  English  decisions,  said:  "If  we 
were  to  disallow  a  plea  in  abatement  of  the  pending  attachment, 
the  defendant  would  be  left  without  protection,  and  be  obliged  to 
pay  the  money  twice :  for  v'e  may  reasonably  presume,  that  if  the 
priority  of  tlie  attachment  in  Maryland  be  ascertained,  the  courts 
in  that  State  would  not  suffer  that  proceeding  to  be  defeated  by 
the  subsequent  act  of  the  defendant  going  abroad  and  subjecting 
himself  to  a  suit  and  recovery  here. 

"  The  present  case  affords  a  fair  opportunity  for  the  settlement 
and  a{)j)hcation  of  a  general  rule  on  the  subject.  It  is  ailmitted 
by  the  case  that  the  plaintiff  owes  a  large  debt  to  the  attaching 
creditors ;  and  that  the  defendant  is  a  resident  of  Maryland. 
There  is  then  no  ground  to  presume  any  collusion  between  the 
defendant  and  the  creditors  who  attached  ;  and  there  is  no  pre- 
tence that  the  plaintiff  was  not  timely  notified  of  the  pendency  of 
the  attachment,  or  that  the  attachment  is  not  founded  on  a  bona 
fide  del)t,  equal  at  least  in  amount  to  the  one  due  from  the  defend- 
ant. If  the  force  and  effect  of  a  foreign  attachment  is,  then,  in 
any  case  to  be  admitted  as  a  just  defence,  it  would  be  difficult  to 
find  a  sufficient  reason  for  overruling  a  plea  in  abatement  in  the 
present  case."  ^ 

The  same  views  have  been  expressed  by  the  Superior  Court  of 
New  Hampshire.^  by  the  Suj)rome  Court  of  Pennsylvaiiia,^  by  the 
Court  of  Appeals  of  Maryland,*  by  Washington,  J.,  in  the  Circuit 
Court  of  the  United  States  for  the  Third  Circuit,^  and  by  the  Su- 
preme Court  of  the  United  States.* 

§  701.  In  Massachusetts,  it  is  held,  that  the  pendency  of  an 
attachment  is  no  cause  to  abate  the  writ  ;  for  iion  constat  that 
judgment  will  ever  be  rendered  in  the  attachment  suit ;  but  that 
it  is  a  good  ground  for  a  continuance  while  the  process  is  pending." 

1  Embrce  v.  Ilunna,  5  Johns.  101. 
'  Ha'solton  V.  Monroo,  18  New  Hamp.  SQ?. 

'  Fit/.j,'crald  i-.  Caldwell,  1  Ycatcs,  ^74;   Ir\ine  r.  Lumbermen's  Bank,  2  Watta  & 
Scr|.'cant,  190. 

*  Brown  r.  Somcrvillc,  8  Maryland,  444. 

»  Cheon;j:wo  v.  Jones,  3  Wu.-ihin}:ton,  C.  C.  359. 

•  Wallace  V.  M'Connell,  13  Peters,  136  ;  Mattinjjly  v.  Boyd,  20  Howard  Sup.  Ct.  128. 
'  Winthrop  v.  Carleton,  8  Moss.  456. 

[505] 


^  701  WHERE   ATTACHMENT   IS   A   DEFENCE,      [CHAP.  XXX VIO. 

This  view  has  been  adopted  in  Louisiana,  in  a  case  where  tlie  gar- 
nishee's answer  disclosed  tlie  existence  of  a  prior  attachment,  iii 
another  State,  of  his  proi)erty,  in  a  proceeding  against  him  as 
garnishee  of  the  same  defendant.  The  cases  are  nut  j»recist;ly 
parallel,  but  the  principle  involved  is  the  same.  The  court  or- 
dered a  stay  of  further  j)roceedings  against  the  garnishee  until 
the  decision  of  the  prior  attachment.^  In  Vermont,  the  pending 
garnisinnent  cannot  be  pleaded  in  abatement ;  but  the  court  gives 
judgment  against  tlie  garnishee  in  favor  of  his  creditor, —  the  at- 
tachment defendant,  —  with  stay  of  execution  until  the  garnishee 
is  released  from  the  garnishmiMit.*-^ 

The  Supreme  Court  of  Alabama  once  sustained  a  plea  in  abate- 
ment, which  went  to  the  writ ;  ^  but  afterwards  fell  into  the  doc- 
trine declared  in  Massachus(>tts,  ami  sustaintMl  this  position  in 
the  following  language:  "If  it  be  admitted  that  a  |)cnding  attach- 
ment may  be  pleaded  in  abatement,  it  by  no  means  follows  that  it 
should  be  pleaded  in  abatement  of  the  writ.  In  general,  a  j)lea  in 
abatement  gives  a  better  writ,  and  in  such  a  case  the  apjjrojiriate 
conclusion  is,  a  prayer  of  judgment  of  the  writ,  and  that  it  be 
quashed.  But  where  matter  can  only  be  pleaded  in  abatement, 
and  yet  a  better  writ  cannot  be  given,  as  the  writ  does  not  abate, 
the  })rayer  of  the  jdea  is,  '  whether  the  court  will  compel  further 
answer.'  There  are  many  reasons  why  an  attachment  pending 
should  not  be  pleaded  in  abatement  of  the  writ.  The  enter- 
tainment of  such  pleas  would  lead  to  the  most  delicate  and  em- 
barrassing questions  of  jurisdiction,  and  in  the  conflict  an  error 
committed  by  cither  court  would  lead  to  the  injury  of  one  of  the 
parties  litigant.  Either  the  garnishee  might  be  compelled  to  pay 
the  debt  twice,  or  the  creditor  might  be  injuriously  aflected.  All 
these  consequences  are  avoided  by  considering  it  as  cause  for  sus- 
pending the  action  of  the  creditor,  until  the  attachment  against 
his  debtor  is  determined,  when  it  can  be  certainly  known  what 
the  rights  of  the  parties  are.  When,  therefore,  the  fact  of  an  at- 
tachment pending  for  the  same  debt  is  made  known  to  the  court, 
where  the  creditor  of  the  garnishee  has  brought  suit,  it  will  either 
suspend  all  proceedings  until  the  attachment  suit  is  determined, 

1  Carroll  v.  McDonogh,  10  Martin,  609. 

*  Morton  v.  Webb,  7  Vermont,  123  ;  Spicer  v.  Spicer,  23  Ibid.  678 ;  Jones  v.  Wood, 
30  Ibid.  268. 
'  Crawford  v.  Clute,  7  Alabama,  157. 
[506] 


702 


CHAP.  XXXVlll.]      AND   THE  MANNER   OF   PLEADING  IT. 

or  render  judgment  with  a  stay  of  execution,  which  can  be  re- 
moved,  or  made  perpetual,  in  whole  or  in  part,  as  the  exigency 
of  the  case  may  require.     And  as  this  course  is  equally  safe,  and 
productive  of  less  delay,  it  would  seem  to  be  the  most  eligible. 
The  court  ako  intimated  that  such  a  stay  of  execution  would  be 
directed  after  judgment,  notwithstanding  an  omission  or  an  inef- 
fectual attempt  to  plead  the  matter  in  abatement.^     In  Indiana, 
the  Svipreme  Court  hehl  it  to  be  very  doubtful  whether  a  pending 
attachment  can  be  pleaded  in  abatement,  and  manifested  a  dispo- 
sition  to  concur  in  the  Ala))ama  doctrine.^     In   Calilornia  that 
doctrine  was  fully  concurred  in.* 

§  702     In  England,  it  is  held,  that  an  attachment  cannot  be 
pleaded  puis  darrein  continuance;  because    after   action  brought 
upon  a  debt,  it  cannot  be  attached  under  the  custom  of  London. 
In  a  case  before  the  Supreme  Court  of  Pennsylvania,  Yeate.s,  J., 

1  Cruwf.nl  r.  Shule.  9  Alabama.  887.     See  t;ulleKO  v.  Galleuo.  2  Rro<-kenbrou«h   285 
^  C>Lv.Monl  r.  Clu.e.  7  Alabama,  157  ;  Crawford  ..  Slade,  9  Ibid.  887.     See  t.Ugcr- 
aid  I'.  Caldw.-ll,  4   Dulla.*.  251. 

»  Smith  V    Blatibfurd,  2  Imliana,  184.  i-        •    . 

«  M         Id.n  ,•.  ( n)o,nu.ll.  18  California.  ICO.   Such  an^  the  d.i.l.d  cases  on  .  n.n^n.r 

It  cannot.  ,H.rha,.s.  U  considm.1  a.s  vet  definitively  set.k.l  wh-thor  a  ,  ea  ."«-«' 

will   ie  in  such  a  e,u*.     Mv  own  conviction  h.  that  such  a  pUa  should  not  \,.  vvi.r- 

:;i;.;^:e:  where  ...  .an.i,hment  taUe.  place  .... re  the  i-^™  ^  J^" -;';:!:^ 

much  less   after.     In  addition  to  the  re«s.,ns  au-amst  it.  a.^.ve  set  forth,  there  is  a  >Lry 

col^'    on;    n  the  fa.-t  t..at  the  defendunfs  int^-re-st  may  seriously  suff..  by  post,..n.nK 

2s"'urin,  of  the  p.rnishc..'.  debt  to  hin.    until  his  1i,.,a..on   wuh  t^e    -la  m^^^^^ 

ermitiated      The  pin.ishee  mav  .«  in  doubtful  circumstances,  mak.nR  Icpd  pro.tH-d 

"     "Inlt  hi.n  nLs^ry  for  .s^.urin,  the  demand  ;  or  he  may  U-  '^"'^-^^^^^  ^ 

ab,coml  out  of  thejuris-lictiouof  the  court,  or  to  d,s,K,se  of  h.s   ,.ro,.er.y   m  fraud  of 

^  ^di.::!.  justio'n.  an  att.chn.ent  a.ainst  hin.sel. ;  and  yet.  '»'-;;;>■  H-    ^ 

attuchrtient  in  aba.en.ent  of  a  suit  by  the  defen.lanl  a;:a,nst  h.m.  h.s  debt  to  t.  e  dc 

?emUu?mav  U-  entir.-lv  K.st,     The  garnishee  can  be  in  no  wise  mjured  by  ...e  ..oublc 

p^".in/a.ainst  him;  for  no  court.  u,.n  bein«  informed  m  a  l-I-;-"'-,.';^;,'^; 

Lt  of  tlu-  two  ,.nKve<.in^'S.  woul-l  hesitate  to  take  smh  measures  as  would  effu  tually 

^u^.         ia  nlhee  a.arnit  double  liability.     This  mi.ht  ..  casi.y  .lone.  .,v  sufferm, 

ZaZv      to  ."rendered  a«ainst  him  in  the  suit,  if  t.rnt  were  in  a  condition  for  jud^- 

;'nt  l."  Ua  .^.rnish^  the  money  to  be  collected  and  held  subject  to  the 

at  K-h  n  n^     Views  which  would  sustain  those  here  expnssed  were  announced  by  the 

Weue  Court  of  Vermont,  in  Hicks  r.  (ileason.  20  Vennont.  1.39,  where  U  was  held. 

M  aM  Lefendaufs  rights  to  the  etfects  in  the  Karnishee's  hands  are  only  so  Atr  ext.n- 

'LI  h  d  1    to  prevent  ..is  making  any  disposition  of  them  which  would  .nterlcre  vnth 

fl'ir  su..j«tion  to  the  pay.nent  of  the  p.aintifTs  demand  ;  and  ^^^ ^^ ^;^y^^'^;^ 

of  making  anv  demand  which  may  be  necessary  to  hx  the  Kam.shec  s  l.ab.l  ty  to  the 

d.t"ntnt   or  of  se.urln«  it  bv  le«al  proceeding,  or  otherwise,  the  defendant  s  n,^h  , 

remain  unin.paired  by  L  gan.ishment;  but  can  be  exercised  only  .n  subord.nafou  to 

'""l  lM>'^:i  2;?;1  Leonard.  210  ;  Palmer  .  Hooks.  I  Ld.  Rayxnond.  727  ;  Savage. 
Case,  1    Salkeld,  291.  p,^_-. 


§  702  WHERE   ATTACUMENT   IS   A   DEFEN'CE,      [CHAP.  XXXVID. 

assigiictl,  no  doubt,  the  true  reason  why  this  rule  obtained  in 
England,  that  when  once  a  suit  has  been  instituted  in  the  superior 
courts  of  Westminster,  for  the  recovery  of  a  debt  or  demand, 
though  it  have  not  been  followed  by  a  judgment,  the  inferior 
courts  cannot,  by  issuing  an  attachment,  prevent  the  plaintiff 
from  proceeding.^  In  this  country,  the  question  turns  altogether 
upon  the  point  whether  a  debt  in  suit  can  be  attached.*  Wherever 
the  affirmative  of  this  question  is  held,  it  must  follow,  of  necessity, 
that  an  attachment,  jtending  the  action,  may  be  j)leaded  puis  dar- 
rein continuance.  In  Alabama,  the  point  came  up  in  a  case  wljcro 
the  action  on  the  debt  and  the  attachment  were  in  the  same  court, 
and  the  plea  was  sustained.''  But  where  the  action  and  the  at- 
tachment were  in  courts  of  different  jurisdictions  —  the  former 
in  a  District  Court  of  the  United  States,  and  the  latter  in  a  State 
court  —  it  was  decided  l)y  the  Supreme  Court  of  the  United  States 
that  the  pica  was  bad  on  demurrer.  In  the  opinion  of  that  court 
on  this  point  the  following  views  arc  expressed  :  "  The  plea  shows 
that  the  proceedings  on  the  attachment  were  institut»?d  after  tho 
commencement  of  this  siiit.  The  jurisdiction  of  the  District  Court 
of  the  United  States,  and  the  right  of  the  plaintiff  to  prosecute  his 
suit  in  that  court,  having  attached,  that  right  could  not  be  arrested 
or  taken  away  by  any  proceedings  in  another  court.  This  would 
produce  a  collision  in  the  jurisdiction  of  courts,  that  would  ex- 
tremely embarrass  the  administration  of  justice.  If  the  attach- 
ment had  been  conducted  to  a  conclusion,  and  the  money  recovered 
of  the  defendant,  before  the  commencement  of  tlic  j)resent  suit, 
there  can  bo  no  doubt  that  it  might  have  been  set  up  as  a  payment 
iipon  the  note  in  question.  And  if  the  defendant  would  have  been 
protected  j^ro  tanto,  under  a  recovery  had  by  virtue  of  the  attach- 
ment, and  could  have  pleaded  such  recovery  in  bar,  tho  same 
princi[)le  would  support  a  plea  in  abatement,  of  an  attachment 
pending  prior  to  the  commencement  of  the  present  suit.  The  at- 
tachment of  the  debt,  in  such  case,  in  the  hands  of  the  defendant, 
would  fix  it  there,  in  favor  of  the  attaching  creditor,  and  the  de- 
fendant could  not  afterwards  pay  it  over  to  the  plaintiff,  Tho 
attaching  creditor  would,  in  such  case,  acquire  a  lien  upon  the 
debt,  binding  upon  the  defendant,  and  which  the  courts  of  all  other 
governments,  if  they  recognize  such  proceedings  at  all,  could  not 

1  M'Cartv  v.  Emlen,  2  Yeates,  190.  8  Hitt  v.  Lacy,  3  Alabama,  104. 

-  See  Chapter  XXXII. 
[508] 


CUAP.  XXX Vin.]      AND   THE   MANNER   OF   PLEADING   IT.  §  "0-i 

fail  to  regard.  If  this  doctrine  be  well  founded,  the  priority  of 
suit  will  determine  the  right.  The  rule  must  be  reciprocal ;  and 
where  the  suit  in  one  court  is  commenced  prior  to  the  institution 
of  proceedings  under  attachment  in  another  court,  such  proceed- 
ings cannot  arrest  the  suit;  and  the  maxim,  qui  prior  eat  tempore, 
potior  est  jure,  must  govern  the  case."  ^ 

§  703.  Manifestly,  a  pending  attachment  should  have  no  effect 
upon  an  action  by  the  creditor  against  his  debtor,  unless  the 
attachment  acts  directly  on  the  latter,  and  not  intermediately 
thnjugli  another.  Therefore,  where  a  town  placed  money  in  the 
hands  of  its  agent,  to  be  paid  to  one  who  had  been  employed  by 
the  town,  and  before  it  was  paid  over  the  agent  was  garnished  hi 
a  suit  against  the  party  to  wliom  the  money  was  payaV»le  ;  which 
j>arty  afterwards  brougiit  suit  against  the  town  for  the  sum  due 
him  ;  it  was  held,  that  the  garnishment  of  the  agent  was  no 
defence.- 

§  703  a.  Equally  manifest  is  it  that  the  fjendency  of  an  attach- 
ment is  no  defence  to  an  action  against  the  garnishee  by  an 
assignee  of  the  defendant,  to  recover  the  debt  in  respect  of  which 
it  is  sought  to  cljarge  the  garnishee.  Thus,  where  an  indorsee 
of  a  negotiable  promissory  note  sued  tlie  maker  thereof,  who 
pleaded  a  pending  garnislwnent  of  liimself  in  an  action  against  tho 
payee,  it  was  held  to  be  no  defence.^ 

§  704.  The  question  has  arisen  and  been  passed  upon,  how 
far  the  pendency  of  an  attachment  relieves  the  garnisliee  from 
accountability  to  the  defendant,  after  the  termination  of  the 
attachment  suit,  for  interest  on  the  debt,  during  the  pendency 
of  that  ^uit.  The  .'^uprcme  Court  of  Pennsylvania  held  it  to  be 
clearly  the  general  rule  that  a  garnishee  is  not  lialjle  for  interest 
while  he  is  restrained  from  the  payment  of  his  debt  by  the  legal 
operation  of  an  attachment ;  unless  it  should  appear  that  there 
is  fraud,  or  collusion,  or  unreasonable  delay  occasioned  by  the 
conduct  of  the  garnishee.*  And  it  was,  therefore,  held,  that  an 
attachment  might  be  pleaded  in  bar  of  interest  on  the  debt, 
during  the  pendency  of  the  attachment  suit,  although  the  gar- 

1  Wallace  V.  M'Conncll,  13  Peters,  136.  »  Mason  v.  Nooiian.  7  Wisconsin,  609. 

-  Clark  V.  Great  Barrinjjton,  11  Pick.  260.     *  Fitzgerald  v.  Caldwell,  2  Dallas,  215. 

[50'J] 


§  TOG  WHERE   ATTACHMENT   IS   A   DEFENCE,      [cilAI'.  XXXVIII. 

nishee  had  not  paid  anything  under  the  attachment  and  it  had 
been  discontinued.*  This  rule  proceeds  upon  the  presumption, 
that  the  garnishee  being  liable  to  be  called  upon  at  any  time  to 
pay  the  money,  has  not  used  it.  But  where  one  attaches  money 
in  his  own  hands,  and  thereby  liccomcs  both  plaintilT  and  gar- 
nishee, no  necessity  exists  for  his  holding  the  money  to  answer 
the  attachment,  and  consequently  no  presumption  can  arise  that 
he  has  not  used  it;  and  he  will,  tlierelore,  be  charged  with  inter- 
est during  the  pendency  of  the  attachment.^ 

§  705.  In  pleading  a  |)ending  attachnifnt  in  abutcment,  tlio 
plea  must  contain  averments  of  all  the  facts  necessary  to  give  tho 
court  in  which  the  attachment  is  pending  jurisdiction,  and  must 
show  whether  the  whole  or  wluit  portion  of  the  debt  has  been 
attached.  A  plea,  therefore,  setting  forth  that  the  defendant  had 
been  summoned  as  garnishee,  under  process  issue«l  on  a  judg- 
ment, but  not  stating  the  amount  of  the  judgment,  is  bad  on 
general  demurrer.^ 

§  700.  II.  Where  »uit  is  brought  after  Jttihjn^ent  rendered  against 
the  Garniishee.  When,  by  a  court  having  jurisdiction  of  the 
action,  and  of  the  person  of  a  garnishee,  judgment  is  rendered 
against  him,  and  he  has  satisfied  it  in  dui'  course  of  law,  such 
judgment  is  conclusive,  against  parties  and  j)rivies,  of  all  matters 
of  right  and  title  decided  l)y  the  C(jurt,  and  constitutes  a  com- 
plete defence  to  any  sul^sequcnt  action  l»y  the  defendant  against 
the  garnishee,  for  the  amount  which  the  latter  was  compelled 
to  pay  ;*  and  this  though  the  court  be  a  foreign  tribunal."  But, 
of  course,  such  a  judgment  cannot  affect  the  rights  of  any  one  not 
a  party  or  privy  to  it.^ 

1  Updejjraff  f.  Sprinj?,  11  Sergeant  &  Kawlc,  188. 

2  Willing  r.  Conscqua,  Peters,  C.  C.  301. 

8  Crawford  v.  Clute,  7  Alabama,  157;  Crawford  v.  Slade,  9  Ibid.  887. 

*  KilLsa  V.  Lormond,  6  Maine,  116;  Holmes  v.  Remsen,  4  John.s.  Ch'y  R.  460; 
Holmes  v.  Rcmscn,  20  Johns.  229;  Hitt  v.  Lacy,  3  Alabama.  104;  Foster  r.  Jones,  15 
Mass.  185;  Mills  ;•.  Stewart,  12  Alabama,  90;  Moore  v.  Spackman,  12  Sergeant  & 
Eawle,  287;  Coates  r.  Roberts,  4  Rawle,  100;  Anderson  v.  Young,  21  Penn.  State, 
443  ;  Cheairs  v.  Slatcn,  3  Humphreys,  101  ;  Adams  r.  Filer,  7  Wisconsin,  306. 

5  Barrow  r.  West,  23  Pick.  270;  Taylor  v.  Phelps,  1  Harris  &  Gill,  492;  Gunn  v. 
Howell,  35  Alabama,  144. 

6  Wise  v.  Hilton,  4  Maine,  435 ;  Olin  r.  Figeroux,  1  M'Mullan,  203  ;  Miller  ».  Mc- 
Lain,  10  Yerger,  245  ;  Lawrence  i-.  Lane,  9  Illinois  (4  Gilman),  354  ;  Cooper  v.  MrClun, 
16  Ibid.  435  ;  Gates  v.  Kerby,  13  Missouri,  157  ;  Funkhouser  i-.  How,  24  Ibid.  44  ;  Man- 
kin  V.  Chandler,  2  Brockenbrough,  125;  Lyman  ».  Cartwright,  3  E.  D.  Smith,  117. 

[510] 


CHAP.  XXXMll]      AND   THE  MANNER   OF   PLEADING   IT.  §  706  a 

§  706  a.    A  judgment  in  favor  of  the  garnishee  is  equally  con- 
clusive against  the  plaintiff,  though  obtained  by  means  of  fraud, 
and  even  perjury,  committed  by  the  garnishee.     A  case  arose  in 
New  Hampshire,  where,  after  a  garnishee  had  answered  and  was 
discharged,  the  plaintiff  brought  an  action  on  the  case  against 
him,  for  obtaining  his  discharge  by  falsehood  and  fraud  in  his 
disclosure,  averred  in  the  declaration  to  have  been  "  wholly  false, 
fraudulent,  wicked,  wilful,  and  designed  to  defraud  the  plaintiff 
of   Ills  just  claim  against  his  debtor ;  by  reason  of  which,  the 
plaintiff'  was  defrauded   and  prevented  from  recovering  his  debt 
against  his  debtor,  and  has  wholly  lost  the  same."     There  was 
a  demurrer  to  the  declaration,  which  was  sustained,  on  the  follow- 
ing groutids:  "What  is  the  foundation  of  the   plaintiff's  claim 
and  charge  ?     Tlie  substance  of  his  complaint  is,  that  the  defend- 
ant ha«l   in   his   hands   funds  for  which  he  ought  to  have  been 
charged  as  trustee  in  that  suit,  and  that  liy  fraudulent  contriv- 
ance with   H.    (the  defendant  in   the  attachment   suit),   and  by 
falsehood    and    fraud    iu    his    disclosure,  he   obtained    an    unjust 
judgment  for  his  discharge.     Tlie  plaintiff,  therefore,  undertakes, 
as  tiie  foundation  of  his  claim,  to  put  in  issue  the  precise  pohit 
that  was  adjudgeti  between   the  saniL'  parties  in  the  former  suit, 
to   wit:     whether   the    defendant    had    in    bis    hands    funds   for 
which    he  ought   in  that    process   to  have   been  charged   as  the 

trustee  of  B. 

"The  same  facts  that  would  be  required  to  maintain  this  dec- 
laration, would  have  been  sufficient  to  charge  the  defendant  as 
trustee  in  the  former  suit.  To  maintain  this  declaration  the 
plaintiff  would  be  obliged  to  show  that,  by  fraudulent  transfers 
and  conveyances,  property  of  B.  came  hito  the  possession  of  the 
defendant,  for  which  he  was  chargealde  in  that  suit  as  trustee; 
otherwise  he  would  not  show  that  the  defendant's  disclosure  was 
false,  or  that  he  had  suffered  any  damage  by  losing  a  security 
for  the  payment  of  his  debt  against  B.  ;  but  if  the  same  facts  had  ap- 
peared in  that  suit,  of  course  the  trustee  would  have  been  charged. 

'^  It  is  quite  manifest  that  in  this  action  the  plaintiff  seeks  to 

try  again  the  same  question  that  was  tried  and  decided  in  the 

former   suit   between   the   same   parties.      This,   on   well-settled 

j.rinciples,  he  cannot  be  permitted  to  do;  and  we  are  not  able  to 

see   any  peculiar   hardship  in   the   application  of   so  familiar  a 

ir -neral  nrincinlo  to  this  case. 

*=  [511] 


§  708  WIIKIJE   ATTACmiKNT   IS   A   DEFENCE,      [CHAI'.  XXXVIIL 

"  This  action  is  of  new  impression.  If  the  experiment  sliould 
succeed,  in  all  the  numerous  cases  where  plaintilTs  seek  to  churgo 
trustees  on  the  ground  of  fraudulent  conveyances  made  to  them 
by  debtors,  after  a  judgment  discharging  the  trustees,  they  might 
be  sued  again,  as  in  this  case,  and  the  same  question  tried  anew 
in  another  action,"  ^ 

§  707.  The  discharge  of  a  garnishee  in  the  attachment  suit  is 
no  bar  to  an  action  by  the  defendant  for  any  cause  of  action 
existing  at  the  time  of  the  discharge-  Nor  does  a  judgment  in 
favor  of  the  garnishee  in  one  attachment  suit  preclude  his  being 
charged  as  garnishee  in  another  suit  in  favor  of  a  diflfercnt  party, 
on  account  of  the  same  debt.^  Nor  does  the  judgment  against 
the  garnishee  amount  to  res  aJJudicataj  as  between  him  and  the 
defendant,  so  as  to  preclude  the  latter  from  claiming  mure  in  his 
action  than  the  garnishee  was  considered,  in  the  attachment  pro- 
ceedings, to  owe.  Were  such  the  case,  it  would  be  in  the  power 
of  a  garnishee,  by  confessing  in  his  answer  a  smaller  indebtedness 
than  actually  existed,  to  practise  a  fi-aud  upon  his  creditor  which 
would  be  irremediable.* 

§  708.  Though  judgment  against  the  garnishee,  and  satisfaction 
thereof,  constitute  a  complete  bar  to  an  action  by  the  attachment 
defendant,  to  the  extent  of  the  amomit  so  paid,  is  the  judgment 
alone,  without  satisfaction,  such  a  bar?  On  this  point  the  au- 
thorities do  not  agree.  In  England,  it  is  held,  that  attachment 
and  condemnation  of  a  debt  is  a  bar  to  an  action  upon  the  same 
debt.^    In  this  country  the  same  has  been  held  in  Maine,^  Massa- 

1  Lyford  v.  Dcmcrritt,  32  New  Ilamp.  234. 

-  riirtlr  v.  Graves,  6  Foster,  258. 

3  Spniill  V.  Trailer,  5  Jones,  39 ;  Breading  v.  Sicgworth,  29  Penn.  State,  396. 

*  Robeson  v.  Carpenter,  7  Martin,  n.  9.  30;  Brown  i-.  Dudley,  33  New  ilamp.  511  ; 
Cameron  v.  Stollenwcrck,  6  Alabama,  704;  Baxter  i-.  Vincent,  6  Vermont,  614.  See 
Tarns  V.  Bullitt,  35  Penn.  State,  308,  where  it  was  held,  that  a  judgment  against  a  gar- 
nishee is  no  bar  to  an  action  by  the  assignees  in  insolvency  of  a  defendant,  to  recover 
from  him  more  than  he  was  charged  for  as  garnishee. 

5  Savage's  Case,  1  Salkeld,  291 ;  M'Danlel  v.  Hughes,  3  East,  367;  Turbill's  Case, 
1  Saunders,  67,  Note  1. 

s  Matthews  v.  Iloughton,  11  Maine,  377  ;  Norris  v.  Hall,  18  Ibid.  332;  McAllister  v. 
Brooks,  22  Ibid.  80.  But  it  must  be  a  final  judgment,  not  a  judgment  by  default 
merely.  Therefore,  where,  under  the  practice  in  Maine,  a  garnishee  was  defaulted,  and 
judgment  was  rendered  against  the  goods,  efl'ects,  and  credits  of  the  defendant  in  liis 
hands  ;  and  afterwards,  on  scire  facias,  he  appeared  and  disclosed  to  the  court  that  he 
was  not  liable  as  garnishee,  and  was  discharged ;  and  afterwards,  when  sued  by  tlie 
[512] 


CHAP.  XXXVIII.]      AND   THE   MAN'NER   OF   PLEADING  IT.  §  708 

chusetts,^  Florida,^  and  Indiana.  ^  In  the  Circuit  Court  of  the 
United  States  for  the  Third  Circuit,  Justice  Washington  held, 
that  a  judgment  in  attacluuent,  where  the  attachment  was  laid  on 
effects  in  the  plaintiff's  hands,  might  be  pleaded  in  bar,  by  way 
of  offset,  or  given  in  evidence  on  notice.*  In  Pennsylvania  and 
Maryland,  liowever,  it  is  held,  that,  to  entitle  the  garnishee  to  a 
plea  in  bar,  it  must  appear  that  he  has  been  compelled  to  pay 
the  doljt,  (n-  that  an  execution  has  been  levied  on  his  property.^ 
And  in  Georgia,  it  was  held,  in  an  action  by  an  indorsee  against 
the  maker  of  a  i)romissory  note,  transferred  to  him  after  the 
maker  had  been  summoned  as  garnishee,  that  the  recovery  of 
judgment  against  the  garnishee,  without  satisfaction,  did  not  con- 
stitute a  defence  to  the  action  ;  and  tliat  if,  after  judgment  ob- 
tained against  the  maker  of  tlie  note,  he  should  satisfy  the  judg- 
ment rendered  against  him  as  garnishee,  the  judgment  on  the 
note  would  thereby  be  extinguished ;  except,  perhaps,  for  costs.*^ 
And  in  Alabama  it  is  held,  that  satisfaction  of  the  judgment 
against  the  garni.shee  is  necessary  to  absolve  him  from  liability.' 
And  so  in  Texas.^ 

Tlio  Snpremc  Court  of  Massachusetts,  however,  has  somewhat 
modified  its  first  ruling  on  this  subject,  holding  tliat  where  it 
does  not  appear  that  execution  has  been  awarded  against  the 
garnishee,  and  that  he  has  l»een  called  on  or  compelled  to  pay,  it 
is  not  such  a  payment,  merger,  or  discharge  of  the  original  debt 
as  to  \ni  pleaded  in  bar.^ 

dct\ii(l;int,  uiulertook  to  set  up  the  jucl{,'mcnt  by  default  in  b:ir  of  tlic  action ;  it  was 
held  to  be  no  bar,  aIthou;,'h  the  jud-nieiit  by  default  was  rendered  before,  and  the  dis- 
charge of  the  ^'arnisliee  ordered  after,  the  eonimcncement  of  the  defendant's  buit 
against  liini.     Sarj;eant  v.  Andrews,  3  Maine,  199. 

1  Perkins  r.  Parker.  1  Mass.  117  ;  Hull  v.  Blake,  13  Ibid.  153. 

*  Sessions  r.  Stevens,  1  Florida,  2."i'J. 
8  Covert  V.  Nelson,  8  IJhukfurd,  205. 

*  Cheonu'wo  v.  Jones,  3  Wasliin','ton,  C.  C.  359. 

6  Ixjwry  r.  Lumbermen's  Bank,  2  Watts  &  Sergeant,  210;  Brown  v.  Somcrvlllc,  8 
Maryland,  444. 

•>  Brannon  c.  Noble,  8  Georgia,  549. 

7  Cook  V.  Field,  3  Alabama,  53. 

8  Farmer  «;.  Simpson,  6  Texas,  303. 

9  Meriam  v.  Rundlett,  13  Piek.  511.  The  facts  of  the  case  were  thus  stated  in  the 
)pinion  of  the  court :  "This  is  assumpsit  by  the  indorsees  against  the  promisors  on  a 
promissory  note  given  at  St.  Louis,  in  the  State  of  Missouri.  The  defendants  i)lead  in 
bar,  that  after  the  making  of  the  note,  which  was  given  to  one  Oliver  Hudson,  ujion  a 
purclia.se  at  auction  of  the  goods  of  Hudson,  ahd  in  satisfaction  of  a  precedent  debt  to 
Hudson,  by  Uundlett  (the  defendant  in  the  action)  and  his  partner  llandolph  jointly, 
they  were  atUuhcd  as  the  garnishees  of  said  Hud^un,  and  upon  n  disclosure  ol  the 
circumstances  under  which  this  note  was  given,  they  were  adjudged  liable  as  such  gar- 

33  [-^13] 


§  709  WHERE   ATTACHMENT   IS   A   DEFENCE,      [CHAP.  XXXVIU. 

§  700.    A  case  came  before  ??tory,  J.,  on  tlie  circuit,  in  which 
the  cflcct  tu  he  given  to  a  judgment  against  a  garnishee  was  con- 

nishecs,  to  Hill  &  M'Giinncgle,  the  plaiiitirts  in  that  suit.  It  is  not  alleged  that  they 
have  paid  over  anything  in  jmrsuanee  of  the  judgment  in  that  suit,  nor  is  the  law  of 
Missouri  set  out  to  sueh  an  extent  as  to  enable  the  eourt  to  detennine  what  is  the 
effect  of  sueh  a  judgment  in  that  State.  On  oyer  the  judgment  and  iiroewdings  aw 
set  out  at  length  in  the  replication.  The  |>roceeilings  are  detailed  so  far  as  to  show 
that  Hundlett,  for  the  firm  of  Hundlett  &  Handoljth,  garnishees  in  the  ease,  having  in 
his  answer  admitted  that  they  were  indehted  to  said  Oliver  Hudson  in  the  sum  of 
$379.74,  it  was  considered  that  the  ])laintiffs  recover  against  said  Hundlett  &  Handolph, 
garnishees  as  aforesaid,  the  said  sum,  &e."  To  this  jilca  there  was  a  demurrer,  assign- 
ing the  following  causes:  1.  That  it  does  not  a|)i)ear  from  the  plea,  that  Hundlett  & 
Randolph  have  ever  ])aid  anything  on  account  of  the  judgment  reeovereii  against  them 
as  garnishees,  nor  that  they  were  liable  to  pay  the  same  when  the  plea  wa.s  pleaded. 
2.  That  the  facts  set  forth  in  the  plea  are  only  a  ground  for  a  continuance,  ami  not  for 
a  plea  in  bar,  until  Hundlett  &  Handolph  have  paid  the  money  on  the  judgment  against 
them  as  garnishees.  3.  That  it  apj>ears  from  the  record  that  Hill  &  M'tiunnegle 
recovered  judgment  against  Hudson  for  S  l,i>07.79,  and  against  four  other  persons,  as 
garnishees,  divers  sums,  making  together  $1,724.06;  and  the  jdea  does  not  show 
whether  those  other  garnishees,  or  either  of  them,  have  or  have  not  paid  any  part  of 
the  judgments  recovered  against  them  as  garnishees. 

SiiAW,  C.  J.,  delivered  the  opinion  of  the  court.  "  It  lias  been  very  well  settled  in 
this  Commonwealth,  that  a  judgment  against  a  gannshce  in  another  State,  where  the 
court  has  jurisdiction  of  the  person  an<l  of  the  subject-matter,  will  protect  one  here, 
who  has  been  obliged  to  pay,  or  is  com|>ellal)le  to  j)ay,  in  jiursuance  of  such  ju<lgment, 
although  it  be  a  debt  due  on  a  jiromissory  note  or  other  negotiable  security,  idthough 
no  such  judgment  would  have  been  rendered  against  a  garnishee  or  trustee  under  our 
laws,  and  although  such  law  apj)cars  to  »is  a  little  unreasonable. 

"He  who  i>ays  under  the  judgment  of  a  tribumil  having  legal  jurisdiction  to  decide, 
and  adecpiate  power  over  the  person  or  property  to  compel  obedience  to  its  decisions, 
has  an  indisputable  claim  to  protection.  But  upon  general  principles,  one  who  has  not 
yet  been  compelled  to  ])ay,  and  who  may  never  be  obliged  to  pay  to  aiiother,  who  has 
attached  the  debt  in  his  hands,  although  he  inay  have  good  right  to  insist  that  proceed- 
ings ought  not  to  be  commenced  or  prosecuted  against  him,  whilst  his  hamls  are  tied, 
and  he  is  legally  prohibited  from  paying  his  debt,  and  so  may  have  good  groun<l  for  an 
abatement  or  stay  of  proceedings,  seems  in  no  condition  to  deny  the  plaintiff's  right  to 
recover  his  del)t,  absolutely  and  forever. 

"  In  examining  the  record  of  the  judgment,  as  set  out  in  the  replicaticm,  it  ilocs  not 
appear  that  any  execution  has  ever  been  awarded.  Hut  it  does  appear  that  the  whole 
debt  due  to  the  plaintiffs  in  that  suit,  as  settled  by  the  judgment,  was  S  1,007.79  with 
costs;  and  that  other  garnishees  were  charged,  in  precisely  the  same  terms  with  the 
defendants,  in  several  sums,  which,  together  with  the  judgment  against  the  defendants, 
made  upwards  of  $2,100,  that  is,  more  than  double  the  amount.  It  is  impossible, 
therefore,  to  consider,  that  these  debts  became  absolutely  transferred  and  made  debts 
due  from  the  garnishees  to  the  attaching  creditor :  the  more  rational  inference,  therefore, 
would  be,  that  by  the  law  of  that  State  sueh  judgment  is  deemed  to  operate  as  a  se- 
questration, as  a  lien,  making  these  sums  chargeable  and  liable  in  the  hands  of  the 
garnishees  to  the  amount  of  the  attaching  creditor's  debt,  and  no  further.  If  this  is 
not  a  just  inference,  if  the  effect  of  this  adjudication  was  absolutely  to  transfer  the  debt, 
to  extinguish  the  rchition  of  debtor  and  creditor  between  the  garnishee  and  the  original 
proprietor  and  present  indorser  of  the  note,  the  law  of  ilissouri,  giving  it  that  extraor- 
dinary effect,  should  have  been  set  out ;  but  as  it  is  not  done,  the  plea  in  bar  cannot 
be  supported." 

The  eourt  then  enter  upon  an  examination  of  the  attachment  law  of  Missouri,  and 
find  there  a  sufficient  ground  for  affirming  the  position  previouslv  announced,  "  that  '.he 
[514] 


CHAP.  XXXVm.]      AND  THE   MANNER   OF   PLEADING  IT.  §  711 

sidered,  where  it  appeared  that  the  plaintiff  in  the  attachment  had, 
by  his  neglect  to  comply  with  the  local  laws,  put  his  judgment  lu  a 
state  of  suspension,  so  that  execution  could  not  issue  upon  it,  and 
it  could  not  be  revived  by  a  scire  facias.  The  court  there  held, 
that  the  lien  of  the  judgment  against  the  garnishee  was  lost  by  the 
laches  of  the  plaintiff,  and  that  the  judgment  was  no  defence 
against  an  action  for  the  debt.^ 

S  710  Tbcre  can  be  no  doubt  that  where  a  part  or  the  whole 
of  \he  del>t  of  the  garnishee  to  the  defendant  has  been  paid  under 
the  judgment  against  him,  such  payment  is  as  effectual  a  bar, 
cither  pro  tanto  or  complete,  to  a  subsequent  action  by  the  defend- 
ant upon  that  debt,  as  if  the  payment  had  been  made  to  the 
defendant  himself.^  And  where,  in  an  action  against  the  gar- 
nishee, by  his  creditor,  the  attachment  defendant,  the  agreed  state- 
ment of  facts  sul^mitted  to  tlie  court  was  silent  as  to  whether  the 
amount  of  the  judgment  against  the  garnishee  was  equal  to  his 
debt  to  tlie  defendant,  it  was  presumed  it  was  so.«  And  a  payment 
of  a  debt  bv  one  of  several  joint  debtors  under  garnishment,  is  a 
good  defence  fur  all  against  a  suit  by  the  defendant.* 

S  711  Wliere  a  payment  under  a  judgment  against  a  garnishee 
is  ndicxl  on  as  a  defence  to  a  suit  by  the  attachment  defendant,  it 
is  important  to  observe  the  rules  upon  which  it  will  be  sustamed. 
Tht'V  may  be  compendiously  stated  as  follows  : 

1.'  The  judgment  against  the  garnishee,  under  which  he  alleges 
he  made  the  payment,  must  be  proved  .& 

■->  It  must  have  l)een  a  valid  judgment.  No  payment  made 
under  a  void  judgment,  however  apparently  regular  the  proceed- 
incrs  may  have  been,  can  protect  the  garnishee  against  a  subsequent 
payment  to  the  defendant  or  his  representatives.  Thus,  where  an 
attachment  was  obtained  against  one  supposed  to  be  living  m  a 
hulsnient  a-ainst  the  garnishees  amounts  to  nothing  more  than  a  lien  on  the  fuml  in 
2  hand!^  ul  even  that  is  a  provisional  one.  to  take  effect  only  m  case  that  othc 
■  f  n  L  Xh  ."re  fir  t  chargeablo  shall  prove  insufficient.  The  court  arc,  therefore,  ol 
^l:  t;^u.^:tw;La„.lt.g  tl.  i.^,L.U  untH  an  execution  '-J-,;-^;;^;:;' 
thn  ..-irnishce  ha^  been  called  on  or  compelled  to  pay,  it  is  not  such  a  pajmtnt,  mcr  ci, 
0'  SltoVth'  original  deht  as  to  le  pleaded  in  bar  and  therefore  that  the  plea 
in  this  case,  not  stating  either  payment  or  execution  awarded,  is  bad. 

:  Z::::^^^^*^V.  =..  ■.  O...  .-.  «„..„,  3,  .U,*a.a,U4,  doc. 
Uoutwell,  1  Allen,  286. 
a  McAllister  v.  Brouks,  22  Maine,  80.  „    .  ,    ,  t  o- 

^  Cook  ,•.  Field,  3  Alabama,  53.  ^  Barton  ..  Smith,  7  Iowa,  S. 


§  711  WHERE   ATTACHMENT   IS   A   DEFENCE,      [CHAP.  XXXVUL 

foreign  cuuntry,  but  who  was  dead  when  the  suit  was  commenced ; 
it  was  held,  that  a  payment  made  by  a  garnishee,  under  execution, 
vv^as  no  defence  against  an  action  by  the  defendant's  administrator ; 
the  whole  proceedings  in  the  suit  being  a  mere  nullity.^ 

3.  The  payment  must  not  have  been  voluntary.  Any  payment 
not  made  under  execution  will  be  regarded  as  voluntary,  and, 
therefore,  no  protection  to  the  garnishee.^ 

4.  The  payment  must  be  actual,  and  not  simulated  or  contrived. 
Thus,  where  certain  persons  were  charged  as  garnishees,  and  cred- 
ited the  plaintiflf  on  their  books  with  the  amount  of  the  judgment, 
and  dei)ited  the  defendant  with  the  same  amount,  but  did  not  in 
fact  pay  the  money,  it  was  liold  to  be  no  payment.^ 

5.  The  judgment  under  which  the  payment  was  made  must 
have  been  rendered  by  a  court  having  jurisdiction  of  the  subject- 

^  Loring  v.  Folpcr,  7  Gray,  505. 

-  Wetter  v.  lliuker,  1  Bruilerip  &  Bingham,  491.  In  Missouri,  where  a  jiul;^ient 
debtor  was  frarnishod,  who  paid  tlie  jud;rnjent  under  an  execution  afterwards  issueil,  hut 
wliicli  was  irre;::ular  and  mi;cht  liavc  heon  set  asiilo  on  liis  ap])lication,  the  payment  was 
held  to  be  no  proU-etion  n^rnjnst  the  gurnialiment.  lluinu  Mutual  Ins.  Co.  r.  Utimhle, 
14  Missouri,  407.     Sec  Burnap  v.  Camid)ell,  6  CI  ray,  241. 

"  Wetter  v.  Rueker,  1  Rroderip  &  Hiii;rham,  491.  The  foljowinp  case  i««  reported  in 
Maryland:  A.  exeeuted  to  B.  several  notes,  for  ditlerent  amounts,  and  j>ayable  at  dif- 
ferent times  ;  and  was  afterwards  ganiished,  in  a  suit  aj;ainst  B.,  and  eluir;;ed  in  resj)cct 
of  all  of  the  notes.  After  heinj;  so  eharped,  A.  Iwuplit  the  judi,'ment  wliieh  had  Ik'CH 
rcnderetl  ajrainst  him  as  trarnishec,  for  al)f>ut  one  third  of  its  amount.  After  this,  A. 
was  sued  by  an  indorsee  for  value  of  one  of  the  notes,  in  resin'ct  of  which  the  jud;;nicnt 
ajraiiist  him  as  ;^ariiishee  had  been  remlered  ;  and  set  uj)  that  jiidL;meat  and  the  transfer 
of  it  to  him,  as  a  defenec,  by  way  of  a  payment  under  garnishment.  It  was  held,  how- 
ever, that  for  the  purposes  of  that  case  the  holder  of  the  note  was  to  he  rejjarded  as 
occupyin;,'  the  situation  of  the  attachment  defendant,  from  whom  he  acfpiireil  the  note; 
that  the  defendant  would  have  been  interested,  and  the  holder  of  the  note  was  interested 
in  the  payment  of  the  whole  amount  of  the  jud;.'ment  at;ainst  A. ;  that  A.,  by  the  pur- 
chase of  the  judgment,  occupied  no  better  position  than  any  other  purchaser  of  it  would 
occupy;  and  that  such  purchase  was  no  defence  airainst  the  note,  though  a.s  between  A. 
and  the  attachment  plaintiff  the  judgment  was  satisfied  and  closed.  Brown  v.  Somcr- 
ville,  8  Maryland,  444.  In  Connecticut,  in  Cutler  v.  Baker,  2  Day,  498,  the  followinjj 
case  was  })rescntcd.  A.  sued  out  an  attachment  against  B.,  and  summoned  C.  as  gar- 
nishee. A.  having  obtained  judgment  and  execution  against  B.,  caused  demand  to  he 
made  upon  C.  for  the  goods  and  effects  of  B.,  towards  satisfying  the  execution,  hut 
none  were  exposed.  B.  then  sued  C,  who  was  still  liable  to  A.  as  garnishee.  C.  being 
threatened  by  A.  with  a  scire  fdcins  against  him  as  garnishee,  to  avoid  cost,  gave  a  note 
in  satisfaction  of  so  much  as  he  owed  B.,  which  note  was  in  the  following  form  :  "  Value 
received  I  promise  to  pay  A.,  S  344.52,  with  interest,  whenever  a  certain  suit  in  favor 
of  B.,  now  pending  against  me,  shall  be  determined  —  provided  said  suit  shall  be  de- 
termined in  my  favor  —  otherwise  this  note  is  to  be  given  up  to  me."  It  was  lield  that 
this  was  a  sufficient  payment  to  protect  C.  against  a  judgment  in  favor  of  B.  It  is  very 
difficult  to  understand  the  ground  for  such  a  decision.  The  court  gave  no  opinion.  It 
is  not  easy  to  discover  how  the  note  could  be  considered  as  a  payment  at  all,  or  any- 
thing more  than  an  agreement  to  pay  on  a  certain  contingency  ;  much  less  a  payment 
in  obedience  to  a  legal  proceeding. 
[516] 


CHAP.  XXXVm.]      AND   THE  MANNER   OF   PLEADING   IT.  §  711 

matter  and  the  parties.  If  there  be  a  defect  in  this  respect,  the 
payment  will  be  regarded  as  voluntary,  and  therefore  unavailing^ 
If,  however,  the  court  have  jurisdiction  of  the  subject-matter  and 
the  parties,  a  payment  on  execution  under  its  judgment  will  pro- 
tect garnis^hee,  though  the  judgment  may  have  been  irregular,  and 
reversible  on  error ;  ^  and  a  reversal  of  it  by  the  defendant  foi 
irregularity,  after  payment  by  the  garnishee,  will  not  invali- 
date tlie  payment.'  But  if  the  garnishee  contest  the  jurisdiction 
of  tlie  court,  and  his  objection  is  overruled,  and  judgment  rendered 
against  him,  a  payment  made  by  him  under  that  judgment  cannot 
be  collaterally  impeached  elsewhere,  on  the  ground  that  the  court 
had  no  jurisdiction.  Its  decision  on  that  point  is  conclusive  in 
favor  of  the  garnishee.* 

6.  Though  the  court  have  jurisdiction  of  the  parties,  and  its 
judgment  be  valid  as  against  the  garnishee,  yet  if  the  law  require 
the  plaintiff,  as  a  condition  precedent  to  obtaining  execution,  to  do 
a  particular  act,  and  without  performing  the  condition  he  obtain 
execution,  and  the  garnishee  make  payment  under  it,  the  payment 
will  be  no  protection  ;  for  it  is  in  the  garnishee's  power  to  resist  the 
payment  until  the  condition  be  fulfilled  ;  failing  in  whicli,  his  pay- 
ment is  regarded  as  voluntary.  Thus,  in  Pennsylvania,  where  a 
statute  required  that  before  payment  could  be  exacted  from  a 
garnishee,  the  plaintiff  should  give  a  bond  to  answer  to  the  defend- 
ant, if  he  should,  within  a  year  and  a  day,  disprove  or  avoid  the 
debt ;  and  a  garnishee  paid  the  amount?  of  the  judgment  to  the 
attachment  plaintiff,  without  execution,  and  without  such  bond 
being  given  ;  it  was  held,  that,  as  his  defence  to  an  action  on  the 
debt  rested  on  his  having  been  compelled  by  due  course  of  law  to 
]iay  it  as  garnishee,  and  he  in  fact  had  not  and  could  not  have 
been  compelled  so  to  pay  it,  the  payment  he  had  made  was  no 
defence  to  the  action."  The  same  view  was  entertained  in  Missis- 
sippi in  a  similar  case.^ 

1  Hiirmon  r.  Birchard,  8  Blackford,  418 ;  Ford  v.  Iliir.l,  4  Smcdes  &  Marslmll,  6S.3  ; 
Rulieruson  v.  Roberts,  1  A.  K.  Marshall,  247  ;  Richardson  i-.  Ilickinan,  22  Indiana,  244. 

-  Atcheson  v.  Smith,  3  B.  Monroe,  502;  Lomcrson  v.  Hoffman,  4  Zahriskii-,  074; 
Pierce  v.  Carlcton,  12  Illinois,  .358;  Houston  v.  Walcott,  1  Iowa,  86;  Stebbins  v.  Fitch, 
1  Stewart,  180;  Thompson  v.  Alien,  4  Stewart  &  Porter,  184;  Gunn  v.  Howell,  35 
Alabama,  144;  Webster  v.  Lowell,  2  Allen,  123. 

*  Duncan  v.  Ware,  5  Stewart  &  Porter,  119. 

*  Gunn  V.  Howell,  35  Alabama,  144  ;  Wyatt's  Adm'r  v.  Ramho,  29  Alabama,  510. 

*  Myers  i-.  Urich,  1  Binney,  25.     See  Moyer  v.  Lobengeir,  4  Watts,  .190. 

"  Oldham  v.  Ledbettcr,  1  Howard  (Mi.),  43;  Grissom  r.  Remolds,  Ibid.  570. 

[-)171 


§  715  WHKRE   ATTACHMENT   IS   A    DKFKN'CE,      [CIIAI'.  XXXVni. 

§  712.  In  Arkiuisus,  it  was  lield,  that  to  entitle  a  ^'arMi>|jee  to 
the  ])rotection  of  a  jud<^nient  against  him  as  such,  all  the  faets 
required  hy  statute  to  enable  the  attachment  plaint;  IT  to  hold  the 
debt  owed  by  the  garnishee,  must  appear  in  the  record  of  tho 
attachment  suit ;  and  that  if  it  appear  that  the  attachment  was 
not  legally  served  on  the  garnishee,  so  as  to  reach  tho  debt  in  his 
hands,  his  answering  as  garnishee,  and  the  subsequent  judgment 
against  him,  will  not  avail  him.^ 

§  71  o.  The  question  here  occurs.  Is  the  garnishoo  to  Ihj  held 
resj)oiisiblu  for  the  riyuhin'fi/  of  the  proceedings  in  the  suit  in 
which  lie  is  garnished  ?  We  have  seen  that  he  is  not  allowed  to 
take  advantage  of  irregularities  or  errors  in  those  proceedings,  in 
order  to  avoid  or  reverse  a  judgment  against  him.-  Manifestly, 
then,  there  can  be  not  the  least  ol)ligation  on  him  to  watch  their 
regularity,  nor  can  he  in  any  way  be  held  responsible  for  it.' 

§  714.  In  order  to  entitle  one  to  jdcad  an  attachment  as  a  con- 
clusive defence,  there  should  l)e  no  neglect,  collusion,  or  misrepre- 
sentation on  his  part,  in  the  progress  of  the  attachment  suit.  For 
if  his  conduct  be  deceptive,  and  his  statements  untrue,  and  es- 
pecially if  this  be  so  in  collusion  with  the  attachment  plaintiff,  tho 
judgment  will  not  be  considered  conclusive  against  his  creditor.* 

In  Delaware  a  case  arose,  where  tho  judgment  against  the  gar- 
nishee, which  he  set  up  as  a  defence,  was  not  rendered  \ipon  a 
verdict,  but  upon  a  reference  entered  into  between  the  garnisheo 
and  the  attaching  plaintiff;  and  it  was  sought  to  deprive  him  (jf 
the  protection  of  his  payment  under  that  judgment,  because  it 
was  the  result  of  a  reference ;  but  the  court  held  it  to  be  as  bind- 
ing on  him  as  a  verdict,  and,  in  the  absence  of  fraud  or  collusion, 
equally  a  protection  to  him.^ 

§  715.  The  importance  of  great  care  in  the  framing  of  a  gar- 
nishee's  answer   is   strikingly  enforced,  in   connection  with  the 

1  Desha  v.  Baker,  3  Arkansas,  509. 

2  Ante,  §  697. 

*  Parmer  v.  Ballard,  3  Stewart,  326;  Tubb  v.  Madding,  Minor,  129;  Gildersleere  v. 
Caraway,  19  Alabama,  246;  Morrison  v.  New  Bedford  Institution  for  SavincfS,  7  Gray, 
267  ;  Wheeler  v.  Aklrich,  13  Ibid.  51  ;  Burton  v.  District  Township,  11  Io\\a,  166. 

*  Coatcs  ('.  Roberts,  4  Eawle,  100;  Seward  v.  Heflin,  20  Vermont,  144. 
5  Stille  r.  Layton,  2  Harrin-iton,  149. 

[518J 


CllVr.  XXWlIl]      AND  THE   MANNER   OF   PLEADING  IT.  §  T16 

Bub«=eqiieiit  use  of  the  judgment   against  him  as  garnishee,  as 
a  defence  to  an  action  upon  the  debt  in  respect  of  which  the 
iudgment  was  rendered.     For  he  cannot  avail  himself  of  such 
iud-mont,  or  of  a  payment  under  it,  as  a  defence,  unless  it  appear 
that"  the  money  paid  was  on  account  of  the  same  debt  for  which 
he  is  sued  '     And  as  the  record  of  the  recovery,  including  the 
an.N^-er  of  the  garnishee,  must  be  given  in  evidence  in  the  action 
by  tho  crcdit..r  against  him  who  was  garnishee,  the  latter  should 
not  fail  to  describe  particularly  in  his  answer  the  debt  m  respect 
of  which  he  is  garnished,  and  to  state  every  fact  within  his  knowl- 
edge having  any  bearing  upon  his  liul,ility ;  so  that,  afterwards, 
the  record  in  the  attachment  suit  shall  exhibit  all  that  is  necessary 
to  a  successful  defence  against  an  action  for  the  same  debt.    Ihus, 
A   answered  as  garnishee,  that  he  was  indebted  to  the  defendant, 
as  executor  of  B.,  in  a  certain  sum,  but  did  not  state  the  nature 
of  the  d<«bt.     Afterwards,  on  being  sued  by  an  assignee  of  a  note 
given  bv  his  testator  to  the  defendant,  he  pleaded  the  judgment 
which  had  been  rendered  against  him  as  garnishee,  and  payment 
thereof  in  bur;  but  the  plea  was  held  bad,  on  demurrer,  because 
it  did  n'ot  av...r  that  the  debt  in  respect  of  which  he  was  garnished 
was  the  same  as  that  sued  upon.' 

A  an.l  B.  were  joint  makers  of  a  note  to  C.  A.  was  summoned 
as  garnishee  of  C,  and  did  not  answer,  but  suffered  ju.lgn.ent  by 
default  to  be  given  against  him,  and  paid  the  judgment.  Alter- 
wards  A  and  B.  were  sued  on  the  note  by  C,  and  set  up  the  pay- 
ment of  the  judgment,  as  a  payment  pro  tanto ;  but  it  was  held 
insufficient,  because  in  itself  aflfonling  no  eviden.:e  that  A.  was 
charged  as  garnishee  on  account  of  the  note.* 

R  7ir,  WHiere  the  answer  of  the  garnisliec  is  the  basis  of  the 
iud.mient  against  him,  and  the  matter  constituting  tJie  garnishee's 
liability  is  therein  set  forth,  the  record  will  sufficiently  establish 
his  defence,  when  sued  by  the  attachment  defendant;  but  where 
there  was  judgment  by  default  against  the  garnishee,  for  want  of 
answer,  he  must  either  be  deprived  of  his  defence,  because  the 
record  does  not  show  for  what  liability  he  was  charged,  or  be  per- 
mitted  to  show  that  fact  by  parol  i.roof.     As  it  is  an  invariable 

^  Comwell  r.  Ilun-^atc.  I  Indiana.  156;   Sangster  v.  Butt.  17  Ibid.  354;   Dirlam  .. 

^TS::;:::^^:^:^^.  B,ac.ford.  ^IS.     see  Humphrey  ..  Baj^s.  Croke  EH.  691 
.  Hutchinson  r.  Eddy.  29  Maine.  91.     See  Dirlam  v.  Wcnger.  14  M.ssoun  548. 

[519] 


§717  "WJIKHK    ATTACHMKNT    IS    A    DEFKNCt;       [CHAl'.  XXXVIH. 

rule  tluit  the  ganiislico  ^luill  not  be  required  to  pay  liis  ileltt  twice, 
there  euii  be  no  doubt  that  he  nuiy  by  jiarol  proof  identify  the  debt 
for  which  ho  was  charged,  with  tliat  on  which  ho  is  sued ;  and  it 

was  so  hi'Kl  in  Ahibania.^ 

§  717.  Usually,  as  between  the  garnishee  and  the  defendant  in 
the  alhulnnent,  diirioulty  is  not  likely  to  arise  from  insufliciency 
in  the  garnishee's  answer;  but  as  between  the  garnishee  and  an 
assignee  of  the  debt,  cases  are  likely  to  occur,  in  which  tiie  gar- 
nishee may,  for  want  of  fulness  and  explicitness  in  his  answer,  bo 
coniiK'lled  to  pay  iiis  debt  a  second  time.  If  at  any  time  prior  to 
judgment  against  a  garnishee,  he  become  aware  of  an  assignment 
of  his  debt,  made  before  the  garnishment,  it  is  his  duty  to  bring 
that  fact  to  the  attention  of  the  court,  in  order  that,  if  practicable, 
the  assignee  may  be  cited  to  substantiate  his  claim,  or  that  the 
court  may  withhold  juilgment.  If  the  garnishee,  knowing  the 
existence  of  such  an  assignment,  make  no  mention  of  it  in  his 
answer,  the  judgment  against  him  will  Iw  no  protection  to  him 
against  an  action  l>y  the  as.signce.^  Thus,  in  a  suit  by  an  assignee 
in  baidvruptcy,  in  Louisiana,  it  was  held  to  he  no  defence,  that  the 
defendant  had  paid  the  debt  as  garnishee  of  the  bankrupt,  when 
it  appeared  that  in  his  answer  as  garnishee  he  made  no  mention 
of  the  bankruptcy  of  his  cixnlitor,  tiiough  he  knew  the  fact,  and 
would  not  have  been  charged  as  garnishee  if  he  had  disclosed  it.* 
So,  where  the  debt  of  the  garnishee  to  the  defendant  was  evidenced 
by  a  note,  the  consideration  of  which  was  wages  due  the  defendant, 
which  could  not  legally  be  attached,  and  the  garnishee  answered, 
admitting  the  making  of  the  note,  but  said  nothing  about  the  con- 
sideration, and  was  charged  as  garnishee;  it  was  held,  in  an  action 

^  Cook  r.  Fiolii.  ;{  AlaSama.  53. 

3  IVswtt  r.  Hull.  17  Johns  IS4;  Nnsrcnt  r.  Opdyke,  9  Robinson  (La).  4.W ;  Col- 
vin  r.  Rich.  ."I  rortor.  175 ;  Lanikin  v.  Phillijvs.  9  Ibiil.  98;  Foster  r.  White.  Ihid.  221  ; 
Johns  r.  Fioia,  5  Alabama.  4S4 ;  Cni\  ton  r.  Clark,  11  Ibid.  787  ;  Smoot  r.  Kslava,  23 
Ibid.  639;  Stockton  c.  Hall.  Hanlin,  160;  Pitts  r.  Mower.  18  Maine.  361  ;  Bunker  r. 
Gihnorw  40  Ibid.  88.  In  Sewanl  v.  Heflin.  20  Vermont,  144,  Hall.  J.,  said :  "  I  am 
not  pr^^parvHl  to  say,  if  a  tnistee  make  a  full  and  fair  disclosur«  of  all  the  facts  within 
his  kuowleilgv,  and  use  .all  rviisonable  exertions  to  preser\-e  the  ri-hts  of  an  absent 
assijrntv,  that  a  judgment  agjiinst  him  shall  not  be  a  protection  to  him  against  such 
assignee.  But  if  the  titistcf  tiMkr  but  a  pai^'al  disc/osttre,  so  that  the  court  /mrt  not  oppor- 
tituit-/  fojmiiff  of  the  mj/  men'ts  of  the  cnse.  and  there  be  any  indications  of  col/usion  Utureen 
htm  <;«(/  tite  creditor,  the  judpnent  shoidd  jitmish  him  no  protection  vhateier."  See  Marsb 
r.  l)a^^s,  24  Vermont,  363. 

3  Nngvnt  I-.  Opdyke,  9  Robinson  (La.),  453;  Milliken  r.  Lorin--,  37  Alalne  40S 
[020] 


CHAP.  XXXVIII.]      AND   THE   MANNER   OF   PLEADING  IT.  §  T17 

against  liim  on  the  note,  by  the  payee,  that  the  judgment  against 
him  wa.s  no  defence,  inasmuch  as,  if  he  had  made  known  in  his 
answer  the  consideration,  the  attachment  could  not  have  been 

sustained.^ 

In  Alabama,  the  statutory  practice  is,  where  a  garnishee  fails  to 
answer,  to  render  judgment  nisi  against  him,  for  the  full  amount 
of  the  plaintiff's  demand  ;   upon  which  judgment  a  scire  facias 
issues  agaiui^t  the  garnishee,  returnable  to  the  next  term  of  the 
court,  to  show  cause  why  final  judgment  should  not  be  entered 
against  him  ;  and  upon  such  scire  facias  being  duly  executed  and 
returned,  if  the  garnishee  fail  to  appear,  and  discover  on  oath,  the 
court  confirms  the  judgment,  and  awards  execution  for  the  plain- 
tiff's whole  judgment  and  costs.     In  a  case  under  this  practice, 
the  garnishee,  without  waiting  for  tlie  scire  facias  to  issue,  paid  to 
the  plaintiff  the  amount  of  the  judgment  7iisi,  and  upon  being 
afterwards  sued  by  the  indorsee  of  a  promissory  note  he  had  given 
to  the  attachment  defendant,  pleaded   that  payment  in  bar.     It 
appeared  that  the  writ  in  the  action  on  the  note  was  served  on  the 
maker  of  the  note  prior  to  the  time  when  he  would  have  been 
required  by  the  scire  facias  — \(  one  had  been  issued  — to  appear 
and  answer;  but  no  scire  facias  was  issued.     The  court  held,  that 
the  suit  on  the  note,  in  favor  of  the  indorsee,  was  a  notice  to  the 
maker  that  his  note  had  been  transferred ;  and  that  fact  having 
been   brouglit  to  his  knowledge  before  he  could  have  answered 
under  the  scire  facias,  and  before  any  final  judgment  could  have 
been  rendered  against  him,  it  was  his  duty  to  have  answered,  and 
made  known  that  he  had  received  notice  of  the  transfer  of  the 
note  ;  and  not  having  done  so,  he  could  not  avail  himself  of  his 
payment  under  the  judgment  nisi,  as  a  bar  to  the  action  on  the 
note.'^     A  similar  doctrine  was  announced  hi  Indiana." 

In  Mississippi,  the  courts  have  gone  very  far  in  requiring  gar- 
nishees to  sustain  the  rights  of  assignees.  It  was  there  held,  that 
the  garnishee,  even  after  execution  issued  against  him,  upon  learn- 
ing aiat  the  debt  attached  in  his  hands  had  been  assigned  previous 
to^the  ganiishment,  is  bound  to  protect  himself  agahist  the  execu- 
tion by  a  bill  of  interpleader;  and  that  if  he  fail  to  do  so,  and 
satisfy' the  judgment,  it  will  be  in  his  own  wrong,  and  constitute 

1  Lock  V.  Johnson,  36  Maine,  464.  ,^. 

2  Johns  V.  FiLld,  5  Alabama,  484.    See  Colvin  r.  Rich,  3  Porter,  175  ;  I'oster  v.  White, 

9  Ibid.  221  ;  Kiinbrough  i'.  Davis,  34  Alabama,  583. 

8  Smith  I?.  Blatchford  2  Indiana   184.  rr->n 

[521] 


§  718  WHERE   ATTACHMENT   IS   A   DEFENCE,      [CHAP.  XXXVHI. 

110  valid  defence  to  the  claim  of  the  assignee.^  But  afterwards, 
when  one  against  whom  judgment  had  been  rcndorcd  as  garnishee, 
and  also  as  defendant  in  a  suit  by  the  assignee  of  the  debt,  filed  a 
bill  of  interpleader  against  both  the  plaintiffs,  the  same  court  held, 
that  it  would  not  lie,  and  left  the  parti/  to  pay  his  debt  twice? 

§  718.  In  connection  with  this  subject  it  may  be  mentioned, 
that  it  is  the  duty,  not  less  than  the  interest,  of  an  assignee  of  a 
chose  in  action,  to  put  it  in  the  power  of  the  maker,  to  disclose  its 
assignment,  in  any  answer  he  may  have  to  give  as  garnishee  of 
the  assignor,  by  notifying  him,  and  exhibiting  to  him  the  evidence 
thereof,  that  lie  may  be  able  to  state  tlie  whole  matter  to  the  court. 
It  is  not  to  be  considered  that,  in  all  cases,  a  failure  on  the  part  of 
the  assignee  to  exhibit  to  the  maker  such  evidence  will  defeat  or 
seriously  prejudice  his  claim ;  but  in  any  system  of  practice  where 
the  garnishee's  liability  turns  altogether  on  the  terms  of  his 
answer,  and  where  the  effect  given  to  a  statement  by  him  of  an 
assignment  of  the  chose  in  action,  in  respect  of  which  it  is  sought 
to  charge  him,  dei)ends,  as  in  Massachusetts,  upon  the  evidence 
which  the  answer  affords  of  the  existence  and  legal  efficacy  of 
such  assignment,  it  is  indispensable  that  the  assignee  should  pro- 
duce to  the  garnishee  such  evidence  of  his  title  as  will  justify  tlic 
garnishee  in  setting  out  the  assignment  as  an  existing  fact,  and 
as  will  support  the  assignment  against  the  attacliing  creditor.^ 
Therefore,  where  A.  gave  an  unnegotiable  note  to  B.,  and  was 
afterwards  summoned  as  garnishee  of  B.  ;  and  in  his  answer 
disclosed  that,  since  the  service  of  the  writ,  C.  had  informed  him 
that  the  note  was  his  property,  and  that  B.  acted  as  his  agent  in 
taking  it,  but  exhibited  no  evidence  of  his  property  in  tlie  note ; 
and  A.  in  his  answer  did  not  state  his  belief  that  C.'s  statement 
was  true,  or  that  the  note  was  C.'s,  and  he  was  thereupon  charged 
as  garnishee,  and  satisfied  the  judgment,  and  afterwards  was  sued 
by  C.  on  the  debt ;  it  was  held,  that  the  judgment  against  A.,  as 
garnishee,  was  a  good  defence  to  the  action  ;  the  main  ground 
assumed,  being  that  C.  had  failed  to  exhibit  such  evidence  of  his 
title  as  would  authorize  A.  to  express  his  belief  in  its  existence 
and  validity.* 

1  Oldham  v.  Ledbetter,  1  Howard  (INIi.),  43. 

2  Yarborongh  v.  Thompson,  3  Smedes  &  Marshall,  291. 

'^  Wood  1).  Partridge,  11  Mass.  488  ;  McAllister  v.  Brooks,  22  Maine,  80. 
*  Wentworth  v.  Weymouth,  11  Maine,  446. 
[522] 


CHAr.  XXXVlIl]      AND   THE    MANNER   OF   PLEADING   IT.  §  722 

§  719.  It  is  still  more  important  that  notice  of  the  transfer  of  a 
note  should  be  given  to  the  maker,  where,  as  in  some  States,  sucli 
transfer  takes  effect,  as  regards  him,  only  from  the  time  of  such 
notice ;  for,  if  previous  to  notice  the  maker  be  subjected  to  gar- 
nishment as  a  debtor  of  the  payee,  and  compelled  to  pay  the 
amount  of  the  note,  the  assignee  cannot  afterwards  maintain  an 
action  against  him.  Thus,  in  Massachusetts,  in  a  suit  brought 
there  by  the  indorsee  against  the  maker  of  a  promissory  note, 
givon  in  Connecticut,  by  one  citizen  of  that  State  to  another,  and 
tlu-ie  indorsed  to  a  citizen  of  Massachusetts,  —  which  note  was 
not  negotiable  by  the  law  of  Connecticut ;  it  was  held  to  be  a 
good  defence,  that  the  maker,  before  he  had  notice  of  the  indorse- 
ment, had  been  summoned  as  garnishee  of  the  payee,  and  had 
paid  the  amount  of  the  note  on  an  execution  issued  against  him  as 
garnishee.^ 

§  720.  In  pleading  a  recovery  against  the  maker  of  a  note, 
as  garnishee  of  the  payee,  it  is  not  necessary  that  the  plea 
should  av(.'r,  in  totUlem  verbis,  that  the  maker  had  no  notice 
of  the  transfer  of  the  note,  before  he  answered  the  garnish- 
ment. If  he  had  notice,  the  jdaintilT  should  reply  the  fact  and 
establish  it.^ 

§  721.  If  the  garnishment  of  the  maker  of  a  note,  and  judg- 
ment against  him,  and  satisfaction  of  the  judgment,  before  he  has 
notice  of  its  transfer,  would  be  held  to  bar  the  right  of  the  holder 
to  recover  against  the  maker,  much  more  will  his  right  be  barred 
where  he  takes  the  note  with  express  notice  of  the  pendency  of  the 
garnishment.^ 

§  722.  In  assumpsit,  the  recovery  and  execution  in  the  attach- 
ment may  either  be  pleaded  specially  or  given  in  evidence  under 
the  general  issue  ;  *  but  in  debt  on  bond  it  must  be  pleaded.  Care 
must  be  taken  to  plead  it  properly,  for  if  the  defendant  fail  for 
want  of  a  proper  plea,  it  is  said  that  the  party  must  pay  the  money 
over  again,  and  his  no  remedy  either  in  law  or  equity.^ 

1  Warren  v.  Copelin,  4  Metcalf,  594.  •  Mills  v.  Stewart,  12  Alabama,  90. 

'  Glanton  r.  Gri^rprs,  5  Georgia,  424. 
*  Cook  1-.  Field,  3  Alabama,  53. 

'  Turbill's  Case,  1  Saunders,  67,  Note  1 ;  Coates  v.  Roberts,  4  Rawle,  100. 

[523] 


§  723  WnF.RE   ATTACHMENT   IS   A   DEFENCE,      [CIIAP.  XXXVin. 

§  723.  Neither  in  giving  an  attachment  in  evidence  under  the 
general  issue,  nor  in  pleading  it,  is  the  defendant  hound  to  prove 
that  the  plaintilT  in  the  attachment  liad  a  sufTicient  cause  of  action. 
For  it  would  oftentimes  defeat  the  whole  effect  of  the  attachment 
laws,  if  the  garnishee  should,  without  the  moans  of  proving  it, 
be  held  to  sucli  proof.^  This,  liowever,  is  held  only  in  cases 
where  the  attachment  is  laid  in  the  hands  of  third  poisons  ;  not 
where  the  party  attaches  money  in  his  own  hands.  In  that  case, 
when  sued  for  the  debt,  the  plaintiff  may  reply  that  he  was  not 
indebted  to  the  defendant,  and  the  defendant  will  be  held  to  prove 
the  debt.2 

1  M'Danicl  v.  Hii;;hcs,  3  East.  367 ;  ^forris  v.  Lndliim,  2  H.  Black.  362. 

2  Serp;cant  on  Attachment,  2(1  Eiiition,  166;  Paramorc  r.  Pain,  Cro.  Eliz.  598; 
M'Daniel  v.  Hughes,  3  East,  367  ;  Morris  v.  LudJam,  2  H.  Black.  362. 


ChAP.  XXXIX.]     'action   FOR   MALICIOUS  ATTACHMENT.  §  726 


CHAPTER    XXXIX. 

ACTION    FOR   MALICIOUS    ATTACHMENT. 

§  724.  In  the  chapter  on  Attachment  Bonds,^  we  considered  the 
resj)onsil»ility  of  an  attachment  phiintifF  to  the  defendant,  for  an 
attachment  which  was  merely  wrongful,  and  not  ohtained  mali- 
ciously and  without  prohahle  cause.  We  now  proceed  to  an  ex- 
amiiu\tion  of  the  recourse  of  the  defendant,  upon  common  law 
principles,  for  an  attachment  maliciously  sued  out. 

§  72o.  Whether  an  attachment  was  wrongfully  sued  out,  can- 
not be  made  the  subject  of  inquiry  between  the  parties  thereto, 
except  in  the  attachment  suit  itself,  or  in  an  action  in'onght  by  the 
defendant  therein  against  the  plaintiir  for  the  wrong.  Ilenco 
where  one  whose  property  had  been  attached  and  sold,  brought 
trover  for  the  value  thereof  against  the  attaching  plaintiff,  and 
it  apj)eared  that  the  attachment  was  issued  conformably  to  statute, 
it  was  held,  that  it  could  not  be  imj)eached  in  a  collateral 
way  in  such  an  action,  on  the  ground  that  it  was  wrongfully 
>ued  out.- 

§  720.  it  lias  hci'u  uniformly  held  in  this  country,  that  an 
attachment  phiintitl"  may  be  subjected  to  damages  for  attaching 
the  defendant's  jjropcrty  maliciously  and  without  probable  cause. 
The  defendant's  remedy  in  this  respect  is  not  at  all  interfered  with 
l)y  the  plaintitf's  having,  at  the  institution  of  the  suit,  given  a 
bond,  with  security,  conditioned  to  pay  all  damages  the  defendant 
might  sustain  by  reason  of  the  attachment  having  been  wrongfully 
ol)tained;'  nor  is  he  considered  as  precluded  from  maintaining 
his  action  for  damages  because  he  consented  to  the  dismissal 
of  the   attachment   suit.*     But,    in    the   absence   of   any  statute 

»  Ante.  Ch.  VI. 

-  Ro;;cr8  v.  Pitman,  2  Jones,  56. 

'  Samlers  c.  Ilu-hes,  2  Brevard,  493;  Donnell  i-.  Jones,  13  Alabama,  490;  Smith  v. 
Story,  4  Humphreys,  169;  Pettit  v.  Mercer,  8  B.  Monroe,  51;  Senecal  v.  Smith,  9 
Hobinson  (La.),  418. 

♦  Spaulding  v.  Wullett   10  Louisiana  Annual,  105. 

[525] 


§  729  ACTION   FOR   MALICIOUS   ATTACHMENT.      [ciIAI'.  XXXIX. 

conferring  the  right,  tue  defendant  cannot  maintain  an  actioa 
against  the  plaintiff  for  tlie  mere  wrongful  suing  out  of  the 
attachment.  Such  an  action,  as  we  have  seen,  may  be  main- 
tained on  the  attachment  bond  ;  ^  but,  on  common  law  princi- 
ples, the  clement  of  malice  is  indispensable  to  authorize  an  action 
on  the  case.^ 

§  727.  This  action  .cannot  be  maintained  against  an- attachment 
plaintiff,  on  account  of  an  attachment  maliciously  obtained  witiiuut 
his  knowledge,  by  an  attorney  at  law  employed  by  him  to  collect  a 
debt;^  but  the  attorney  is  liable  in  such  case  ;  and  wbore  he  and 
his  client  act  in  concert  they  are  both  liable.* 

§  728,  It  is  no  obstacle  to  the  institution  and  maintenance  of 
this  action,  tliat  the  attachment  was  obtainccl  in  a  court  within  a 
foreign  jurisdiction.  Tlie  question  is,  not  where  the  attachment 
issued,  but  whether  it  was  justifiable.  If  issued  in  a  foreign  State, 
the  forms  of  the  proceeding  must  be  tested  by  tlie  laws  of  that 
State ;  but  if  valid,  in  form,  under  those  laws,  the  question  still 
remains,  whether  the  plaintiff  perverted  those  forms  to  the  purpose 
of  oppression ;  and  this  is  for  the  determination  of  the  court,  do- 
mestic or  foreign,  in  which  it  may  arise.^ 

§  729.  The  defendant's  action  is  governed  by  the  principles  of 
the  common  law  applical)le  to  actions  for  malicious  prosecution. 
Case,  therefore,  and  not  trespass  vi  et  annis,  is  the  proper  action 
for  enforcing  this  liability.^    It  cannot  be  brought  until  the  attacli- 

1  Ante,  Ch.  YL  2  McKellar  v.  Couch,  34  Alabama,  336. 

3  Kirksey  v.  Jones,  7  Alabama,  622. 

*  Wood  V.  Weir,  5  B.  Monroe,  544. 

5  Wiley  V.  Traiwick,  14  Texas,  662. 

°  Shaver  v.  White,  6  Munford,  110;  Ivy  v.  Bambartt,  10  Missouri,  151.  In  Lovier 
1-.  Gilpin,  6  Dana,  321,  the  Court  of  Ai)i)cals  of  Kentucky  said:  "  In  trespass  the  force 
is  tlie  gist  of  the  action,  and  if  that  be  justified  by  the  process,  the  motive  of  the  party, 
either  in  setting-  it  on  foot,  or  in  directing  its  execution,  is  immaterial,  whatever  may 
have  been  the  consequential  injury;  nor  can  the  efficacy  or  inefficacy  of  the  process  to 
justify  the  force  committed  under  its  mandate  depend,  in  any  degree,  upon  the  motive 
witli  which  it  was  issued  or  executed.  However,  therefore,  the  i)roof  or  imputation  of 
malice  might  justly  operate  to  enhance  the  damages,  even  in  an  action  of  trcsjjass,  when 
the  right  to  sue  for  the  force  itself  is  established,  it  gives  no  aid  whatever  in  esUxblish- 
ing  that  right.  And  it  would  seem  that  the  very  necessity  (if  there  be  such  necessity) 
of  resorting  to  the  existence  of  malice  as  a  ground  of  the  action,  is  so  far  an  evidence 
that  the  action  is  not  sustainable  simply  for  the  force ;  and  therefore,  that  cast-,  which 
is  founded  upon  the  existence  of  malice  and  the  want  of  probable  cause  for  the  injurious 
[526] 


CHAP.  XXXIX.]      ACTION   FOR    MALICIOUS   ATTACHMENT.  §  730  a 

meat  suit  shall  have  termhiated  ;  but  an  omission  to  aver  in  the 
declariition  its  termination,  is  cured  by  verdict.^ 

§  730.  It  is  not  sufficient  to  aver  that  the  defendant  caused 
and  {irocured  an  attachment  to  be  wrongfully  and  maliciously  and 
without  probaljle  cau>e  sued  out  against  the  plaintilf,  and  that  the 
writ  was  placed  in  the  hands  of  a  shcritT,  and  was  by  him  executed. 
The  defendant  must  be  connected  by  averment  with  the  execution 
of  the  jtrocess,  by  delivering  tbt;  writ  to  the  oflicer,  or  iiarticiputing 
in  his  proceeduigs.* 

§  730  a.  In  such  an  action,  before  the  defendant  can  be  called 
upon  to  sustain  the  truth  of  the  affidavit  upon  which  the  attach- 
ment was  issued,  the  plaintitf  must  give  some  evidence  of  its 
falsity,  or  of  circumstances  from  which  the  jury  could  infer  its 
falsity.     IJis  right  to  recover  depends  on  the  ve.Katious  use  of  tho 

prtxeetliii;;,  is  tlic  more  apitropriute  reriifdy.  It  i.i  laid  down  by  (.liiftv  timt  '  no  jH?rson 
who  nets  ii|ri>ti  u  ri";;iiliir  writ,  or  wiirnint,  ran  J>c  liiiMe  to  the  iicti<in  of  trfS|iiis!<,  how- 
ever niHlicioii!!  his  roiidnct ;  hut  t-aso,  for  tlic  in«li<'io»s  ntotive  and  want  of  prohnhio 
cuu!ic  for  the  pHKu-ediiij;,  i*  the  only  susiainahli'  form  of  action  ' ;  and  for  this  doctrine 
he  citi's  -ovenil  u<ljudxcd  cavs.  In  thr  cn>c  of  Owens  i'.  Starr,  2  Littoll,  2.'J4,  the  same 
principle  in  effivt  is  announced  hy  this  court,  and  is  declared  to  Ik-  applicable  to  an 
attachment  i.i!»ne<l  by  a  justice  of  the  pea«-e  under  our  Htatute,  —  for  the  abuse  of  which 
process,  as  is  there  said,  the  party  injured  must  resort  to  ati  action  on  the  case.  Thai 
was  an  action  of  trespass  a^'ainxt  the  party  who  Inul  priKun-d  the  attachment,  and  it 
apiK'ared  tliat  he  was  present  (its  in  this  case),  nidin<;  tin;  officer  in  levying;  it  on  the 
plaintiti's  |;o«><i.-<.  It  wai>  decideil  that,  a.s  the  attachment,  though  voidable,  was  not 
void,  it  formed  a  justification,  and  mi;,'ht  ilefeat  the  action  of  tre>|»ass.  In  the  same 
case,  the  court  lays  down  the  principle,  '  that  for  projierty  taken,  or  a  jktsou  arrested, 
under  process  of  law,  an  action  of  trespass  cannot  Ik;  maintained,'  uidcss  it  be  '  where 
the  process  is  wholly  irrej;ular  or  voiil,  or  has  been  set  asiile  or  annulled,  or  has  issued 
from  a  court  or  tribunal  not  having;  com|ietent  jurisdiction,  or  where  tho  pnKtess  has 
been  levied  or  e.\ecute«l  on  the  ;r<KMls  or  [KTson  of  a  stranj^er.'  We  have  seen  no  nd- 
Judjjed  ca.se  nor  elementary  treatise,  in  which  tills  list  of  i-xeejitions  has  U-en  extended, 
and  the  jirinciple,  subject  to  the  exceptions  state<I,  is  ahumluntly  supjKjrted  by  authority. 
Assumiii;;,  then,  that  a  valid  attachment  stands  u{K)n  the  same  footin;;  as  any  other 
legal  process,  with  resjiect  to  the  protection  which  it  affords  to  thosc  enpi^e*!  in  tlio 
execution  of  its  mandate,  and  that  the  force  necessarily  employed  for  that  purjiose  is 
not,  in  itself,  the  ground  of  an  action  of  trespass  against  the  orticcr  or  his  assistants  by 
whom  it  is  levied,  or  the  party  by  whom  it  is  sued  out;  it  follows  that,  if  this  attach- 
nient  wiis  issued  by  a  tribunal  having  comj»etent  autliority,  the  jdaititilf  cannot  main- 
tain trespit«s  for  the  seizure  and  a.«|iortation  of  his  projierty  under  it,  unless  it  was 
cither  irregular  or  void,  or  unless  it  had  been  set  aside  and  annulle<l." 

»  Rea  V.  Lewis,  Minor,  .38i> ;  Nolle  v.  Thompson,  3  Metcalfe  (Hy.),  121  ;  Feazle  v. 
Simpson,  2  Illinois  (1  Scammon),  .30.  In  Fortman  v.  Rottier,  8  Ohio  State,  54S,  it 
wa-s  held,  that  this  is  not  necessary,  where  the  trial  and  judgment  in  the  utttichment 
suit  do  not  neccs.sarily  involve  the  ipiestion  of  the  existence  of  probable  cause. 

«  Marshall  r.  Betner,  17  Alabama,  832. 

ro27J 


§  732  ACTION  FOR   MALICIOUS   ATTACHMENT.      [CHAP.  XXXIX. 

process ;  and  to  make  this  out,  the  onus  is,  in  the  first  instance, 
on  him.^ 

§  731.  In  such  an  action  a  return  of  the  sherifif  on  the  attach- 
ment, "  not  executed  hy  order  of  the  plaintiff  "  does  not  disprove  the 
fact  that  an  attachment  was  made.  Though  given  in  evidence  by 
the  plaintiff,  he  may  contradict  it,  and  sliow  by  parol  proof  that 
the  writ  was  executed.^ 

§  732.  The  earliest  adjudication  concerning  this  action  in  this 
country,  with  which  we  have  met,  was  in  Virginia,  in  1803,  when 
it  was  decided  that  no  action  could  be  sustained,  unless  it  appeared 
tliat  the  plaintiff,  in  attaching  the  defendant's  property,  acted  ma- 
liciously and  without  probable  cause  ;  and  that  it  was  not  sufficient 
for  the  declaration  to  aver  that  the  attachment  was  "  without  any 
legal  or  justifiable  cause  "  ;  but  it  must  allege  the  want  of  prohahU 
cause. ^  This  doctrine  has  since  been  recognized  and  affirmed 
in  Massachusetts,  Connecticut,  New  Jersey,  Pennsylvania,  Ohio, 
Tennessee,  Kentucky,  North  Carolina,  Georgia,  Louisiana,  and 
Texas.'*  In  Virginia,  however,  in  1859,  it  was  held,  that  under 
the  broad  and  comprehensive  terms  of  the  statute  of  jeofails  of 
that  State,  adopted  after  the  first  ruling  on  this  .subject,  as  just 
stated,  a  declaration  charging  that  the  attachment  was  sued  out 
"  wrongfully  and  without  good  cause,"  was  good  after  verdict ; 

1  O'Grady  v.  Julian,  34  Ala])ama,  88.     See  Burrows  v,  LehndorfF,  8  Iowa,  96. 

2  aicjtt  V.  Smith,  2  Crancli,  C.  C.  33. 
'^  Young  V.  Gregorie,  3  Call,  446. 

*  Lin.«ay  v.  Larncd,  17  Mass.  190;  Wills  v.  Noyes,  12  Pick.  324;  Ives  v.  Bartholo- 
mew, 9  Conn.  309  ;  Boon  v.  Maul,  Pennington,  2(1  Ed.  631  ;  M'Cullough  v.  Grislioljher, 
4  Watts  &  Sergeant,  201  ;  Tonilinson  v.  Warner,  9  Ohio,  103 ;  Smith  v.  Story,  4  Hum- 
phreys, 1G9;  Williams  v.  Hunter,  3  Hawks,  545;  Senecal  v.  Smith,  9  Robinson  (La), 
418;  Wiley  v.  Traiwiek,  14  Texas,  662;  Sledge  v.  McLaren,  29  Georgia,  64;  Acces- 
sory Transit  Co.  V.  McCerrcn,  13  Louisiana  Annual,  214;  Mitchell  v.  Mattingly,  1 
Metcalfe  (Ky.),  237.  In  Wood  v.  Weir,  5  B.  Monroe,  544,  the  Court  of  Appeals  of 
Kentucky  thus  state  the  doctrine  applical)le  to  actions  for  malicious  suit :  "  To  main- 
tain an  action  for  a  malicious  suit,  as  well  as  for  a  malicious  prosecution,  three  tilings 
are  necessary  to  be  made  out  by  tiic  plaintiif :  1.  A  want  of  probable  cause;  2.  Malice 
in  the  defendant;  and  3.  Damage  to  the  plaintiff.  Malice  maybe  implied  from  the 
want  of  i)robal)le  cause,  but  this  implication  may  be  explained  a]id  rei)elled  hy  facts 
and  circumstances  indicating  a  fair  and  legitimate  purpose  and  honest  pursuit  of  a 
claim  believed  to  be  just.  So,  though  there  be  probable  cause,  and  even  just  grounds 
for  the  suit,  if,  from  bad  intentions  or  malicious  motives,  an  illegal,  o]i])rcssive,  and 
vexatious  order  is  procured,  by  the  attorney  or  client,  or  both,  without  probable  cause 
or  excuse,  by  which  damage  is  done  to  the  defendant,  an  action  will  lie  again^;t  tlieni 
both.  And  malice  may  be  implied  from  the  want  of  probable  excu.sc,  or  grounds  for 
the  order,  wliich  may  be  cxjjiained  away  or  repelled  by  counteracting  circiiinstaiices." 


CHAP.  XXXIX.]      ACTION  FOR   MALICIOUS  ATTACHilENT.  §  733 

because  proof  that  it  was  sued  out  maliciously  and  without  proba- 
ble cause,  would  be  entirely  consistent  with  the  allegation  as  laid ; 
and  it  might  well  be  that  the  same  testimony  relied  on  to  establish 
the  latter  would  furnish  sufficient  proof  of  the  former .^ 

§  732  a.  The  essential  ground  is,  that  the  proceedings  com- 
plained of  were  had  without  probable  cause  ;  inasmuch  as,  from 
the  want  of  such  cause,  the  other  main  ingredient,  malice,  may 
be,  and  most  commonly  is,  implied  ;  while  from  the  proof  of  even 
express  malice  the  want  of  probable  cause  cannot  be  inferred.  It 
is,  therefore,  important  to  determine  what  is  probable  cause.  It 
is  not  referable  to  the  state  of  facts  actually  existing  when  the 
attachment  suit  was  brought,  without  regard  to  whether  the  plain- 
tiff therein  knew  of  those  facts,  and  based  his  proceedings  upon 
them ;  for,  in  the  language  of  the  Court  of  Appeals  of  Virginia, 
that  "  would  be  in  effect  to  allow  a  party  sued  for  a  malicious 
prosecution  to  say  to  the  plaintiff,  by  way  of  defence, '  It  is  true 
you  are  innocent  of  the  offence  with  which  you  were  charged, 
and  at  the  time  of  instituting  the  prosecution  I  knew  of  no 
circumstances  to  justify  me  in  believing  you  to  be  guilty,  and  did 
not  so  believe ;  but  I  have  since  ascertained  that  there  existed 
at  the  time  certain  facts  and  circumstances,  which,  had  they 
been  then  known  to  me,  would  have  warranted  me  in  believing 
you  guilty.'  "  Probable  cause  is,  therefore,  to  be  referred  to 
the  justifiable  belief  of  the  party,  based  on  a  knowledge,  at  the 
time,  of  facts  and  circumstances  justifying  that  belief;  or,  in 
other  words,  it  is,  substantially,  belief  founded  on  reasonable 
grounds.^ 

§  733.  The  malice  necessary  to  support  this  action  is  any 
improper  motive.  It  need  not  imply  malignity,  nor  even  cor- 
ruption, in  the  appropriate  sense  of  those  terms.  That  which  is 
done  contrary  to  one's  own  conviction  of  duty,  or  with  a  wilful 
disregard  of  the  rights  of  others,  whether  it  be  to  compass  some 
unlawful  end,  or  some  lawful  end  by  unlawful  means,  or  to  do  a 
wrong  and  unlawful  act,  knowing  it  to  be  such,  constitutes  legal 
malice.^  If,  for  instance,  a  person  commence  an  action  by  attach- 
ing the  goods  of  the  defendant,  knowing  tliat  he  has  no  cause 

1  Spengler  v.  Davy,  15  Grattan,  381.  ^  \fi^s  v.  Xoyes,  12  Pick.  324. 

*  Spengler  v.  Davy,  15  Grattan,  381. 

34  [529] 


§  736  ACTION   FOE   MALICIOUS   ATTACHMENT.      [CHAP.  XXXIX. 

of  action,  he  is  considered  to  have  intended  to  vex,  harass,  and 
injure  him  ;  and  this  is  sufficient  evidence  of  mahce.^  So,  though 
he  have  a  cause  of  action,  if  he  allege,  as  a  ground  for  obtaining 
the  attachment,  that  which  he  knows  to  be  false,  it  is  express 
malice.^ 

§  734.  In  Massachusetts,  it  is  held,  that  the  action  cannot  be 
sustained,  unless  the  evidence  be  satisfactory  that  the  plaintiff 
hneiv,  when  he  commenced  his  action  by  attachment,  that  he  had 
no  cause  of  action,  and  that  he  acted  maliciously  in  that  behalf. 
Therefore,  where  the  declaration  alleged  that  the  attachment 
plaintiff  knew  he  had  no  lawful  cause  of  action  against  the  de- 
fendant when  the  action  by  attachment  was  commenced,  and  that 
he  acted  maliciously  in  commencing  it  without  any  just  cause,  and 
also  in  attaching  and  detaining  plaintiff's  property ;  it  was  held, 
that  the  declaration  was  not  supported  by  evidence  that  he  had 
attached  the  property  under  a  belief  that  he  had  a  good  cause  of 
action,  and  then  maliciously  detained  it  after  he  had  learned  that 
the  suit  was  groundless.^ 

§  735.  In  New  Jersey,  it  was  held,  that  an  action  for  malicious 
attachment  would  lie,  where  the  attachment  was  sued  out  of  a 
court  having  no  jurisdiction ;  and  that  in  the  declaration  it  was 
not  necessary  to  aver  that  the  defendant  knew  that  the  court  had 
not  jurisdiction.  And  in  that  case  the  court  refused  to  allow  the 
cause  of  action  for  which  the  attachment  was  obtained  to  be  shown 
in  evidence.* 

§  736.  The  doctrine  intimated  in  the  last-cited  case  in  Massa- 
chusetts, that  the  plaintiff's  belief  of  his  having  a  cause  of  action, 
will  protect  him  from  an  action  for  malicious  prosecution,  has 
been  distinctly  recognized  and  announced  in  other  States,  in 
relation  to  the  grounds  on  which  the  attachment  is  sued  out,  as 
distinct  from  the  question  of  the  existence  of  a  cause  of  action. 
In  North  Carolina,  it  was  decided  that  the  plaintiff's  belief,  caused 
by  the  defendant's  conduct,  that  the  defendant,  as  alleged  in  the 
affidavit,  had  absconded,  was  sufficient  to  protect  the  plaintiff 
from   this   action,  although  in   fact  the  defendant   had   not   ab- 

1  Ives  V.  Bartholomew,  9  Conn.  309.  ^  Stone  v.  Swift,  4  Pick.  389. 

2  Tomlinson  i'.  "Warner,  9  Ohio,  103.  *  Boon  v.  Maul,  Pennington,  2d  Ed.  631. 

[530] 


CHAP.  XXXIX.]       ACTION   FOR   MALIQOUS   ATTACHilENT.  §  738 

sconded.^  So,  in  Pennsylvania,  in  a  similar  case,  it  was  held, 
that  the  question  was  not  whether  the  attachment  defendant  had 
really  absconded,  but  whether  his  conduct  was  such  as  to  justify 
the  plaintiff's  apprehensions,  and  to  make  recourse  to  the  attach- 
ment a  measure  of  reasonable  precaution.^  So,  in  Tennessee, 
where  the  plaintiff  sued  out  an  attachment  on  the  ground  that 
the  defendant  was  a  non-resident  of  the  State,  when  it  appeared 
that,  though  he  had  been  two  years  absent  from  the  State,  and 
had  avowed  his  intention  to  remove,  yet  he"  had  not  in  fact 
changed  his  domicile  ;  and  the  attachment  was  dismissed  ;  and  the 
defendant  brouglit  his  action  against  the  plaintiff  for  damages  ;  it 
was  held,  that  a  recovery  could  not  be  had  merely  on  the  ground 
that  the  attachment  had  been  obtained  when  it  ought  not  to  have 
been,  Init  that  the  probable  cause  given  by  the  defendant  must  be 
taken  into  consideration  as  a  defence.^ 

§  737.  But  though  the  plaintiff's  belief  may  protect  him  from 
an  action  for  malicious  prosecution,  the  question  still  arises,  as  to 
what  will  justify  such  a  belief.  In  reference  to  the  cause  of  action 
it  may  be  easy  to  show  the  grounds  of  the  belief ;  but  perhaps  not 
so,  in  regard  to  the  special  ground  laid  for  obtaining  the  attach- 
ment. In  such  case  it  has  been  considered,  that  mere  representa- 
tions made  to  the  plaintiff  by  third  parties,  that  the  defendant  was 
about  to  abscond,  without  any  evidence  that  the  charge,  was  true, 
or  that  the  ])laintiff  had  any  reason  to  believe  it  true,  or  made  any 
inquiry  into  the  matter,  were  no  ground  of  defence  to  him  when 
sued  for  malicious  prosecution.* 

§  738.  In  Alabama,  where,  as  we  have  seen,^  actual  damage  for 
a  merely  wrongful  attachment  may  be  recovered,  when  no  malice 
existed  or  is  averred,  the  plaintiff's  belief  of  the  existence  of  a 
cause  of  action,  or  of  facts  authorizing  the  issue  of  an  attachment, 
may  be  given  in  evidence  to  repel  the  presumption  of  malice,  and 
thereby  prevent  the  recovery  of  exemplary  or  vindictive  damages.^ 
And  so,  in  Louisiana,  it  was  considered  that  if  it  was  apparent 

1  "Williams  v.  Hunter,  .3  Hawks,  545. 

2  M'Cullough  f.  Grishobber,  4  Watts  &  Sergeant,  201. 

3  Smith  V.  Story,  4  Humphrej-s,  169. 

*  Schrimpf  v.  McArdle,  13  Texas,  368. 

5  Ante,  §  157. 

6  Donnell  r.  Jones,  13  Alabama,  490  j  White  v.  Wylej,  17  Ibid.  167. 

[531] 


§  740  ACTION   FOR   MALICIOUS   ATTACHMENT.      [CHAP.  XXXIX. 

that  the  plahitiff  in  the  attachment  had  a  sufficient  or  very 
probable  cause  of  action,  and  was  prevented  from  gaining  a  judg- 
ment by  some  technical  objection,  or  irregiilarity  in  tlie  proceed- 
ings, which  could  not  be  foreseen,  the  probability  and  justice  of 
the  demand  might  be  pleaded,  and  given  in  evidence  in  mitigation 
of  a  claim  for  vindictive  damages.^ 

These  cases  are  equivalent  to  a  recognition  of  the  common  law 
principle  we  have  been  considering ;  for  it  is  admitted  that  the 
plaintiff's  belief,  on  proper  grounds,  would  be  sufficient  to  protect 
him  from  a  recovery  of  those  damages  which,  but  for  peculiar 
statutes,  would  be  authorized  by  the  common  law,  and  could  be 
recovered  only  on  common  law  grounds. 

§  739.  In  the  cases  cited,  in  which  the  probable  cause  for  the 
attachment  is  inquired  into  as  a  bar  to  the  action,  it  will  be  found 
that  no  opportunity  existed  to  investigate  and  determine  that 
point  in  the  attachment  suit.  Where,  as  in  some  States,  the 
attachment  defendant  may  preliminarily  controvert  and  disprove 
the  truth  of  the  affidavit  on  which  the  attachment  issued,  that 
point  could  not  properly  become  the  subject  of  investigation  in 
the  action  for  malicious  prosecution.  For  if  the  truth  of  tlie 
affidavit  was  tried  in  the  attachment  suit,  and  determined  against 
the  plaintiff  there,  the  matter  woidd  be  7'es  adjucUcata,  and  of 
course  he  could  not,  when  sued  by  the  defendant,  set  up  the  truth 
of  the  affidavit  as  a  defence.^  On  the  other  hand,  the  attachment 
defendant,  if  the  affidavit  should  have  been  found  to  be  true, 
would  be  equally  precluded,  in  the  action  for  malicious  prosecu- 
tion, from  contesting  that  point ;  or  if  he  failed  to  put  it  in 
issue  in  the  attachment  suit,  it  would  be  an  admission  of  the 
allegation  in  the  affidavit,  which  lie  could  not  afterwards  retract 
or  deny. 

§  740.  But  even  where  this  course  may  be  pursued,  it  has  been 
held,  that  an  appearance  to  the  attachment,  entering  special  bail, 
and  confessing  judgment  for  only  a  part  of  the  sum  demanded,  is 
not  a  waiver  of  the  injury  ;  for,  said  the  court,  "  the  defendant 
had  no  alternative  but  to  enter  special  l)ail  or  see  his  property 
sacrificed  for  what  was  in  fact  not  due.  An  appearance  thus  ex- 
torted, is  surely  not  an  admission  that  the  means  employed  were 

1  Cox  V.  Robinson,  2  llobinson  (La.),  313.     -  Haydcn  v.  Sample,  10  Missouri,  215. 
[532] 


CHAP.  XXXIX.]      ACTION  FOR   MALICIOUS   ATTACHMENT.  §  743 

legal ;  and  a  creditor  cannot  compel  the  payment,  even  of  a  just 
debt,  by  illegal  means."  ^ 

§  741.  In  a  suit  for  wrongfully  and  vexatiously  suing  out  an 
attachment,  on  the  ground  of  an  intended  departure  of  .the  debtor 
from  the  State,  it  is  not  admissible  for  the  defendant  to  give  in 
evidence,  as  proof  of  probable  cause,  declarations  of  the  debtor 
made  a  few  days  before  the  issue  of  the  attachment,  which,  when 
it  was  issued,  had  not  come  to  the  knowledge  of  the  attachment 
plaintiff.  Declarations  accompanying  an  act  of  a  party,  fi-om 
which  act  an  inference  is  sought  to  be  drawn  prejudicial  to  him, 
are  admissible  in  evidence,  as  characterizing  the  act,  and  as  ex- 
planatory of  the  intention  with  which  it  was  done.  But  to  form  a 
part  of  the  7'es  gestce,  such  declarations  must  be  made  at  the  time 
the  act  they  are  supposed  to  characterize  was  done,  and  must  be 
calculated  to  elucidate  and  unfold  the  nature  and  quality  of  the 
facts  they  were  intended  to  explain,  and  so  to  harmonize  with 
those  facts  as  obviously  to  constitute  one  transaction.  Declara- 
tions not  of  this  character,  whether  made  before  or  after  the  act 
with  which  it  is  sought  to  connect  them,  are  not  part  of  the  res 
gestce,  but  independent  facts,  and  are  not  admissible  in  evidence.^ 

§  742.  In  such  a  case  as  that  stated  in  the  previous  section,  it 
is  equally  inadmissible  for  the  plaintiff  to  rebut  the  evidence  of 
probable  cause,  by  proof  that  it  was  generally  reputed  in  the 
neighborhood  in  which  he  lived  that  he  was  going  abroad  on  a 
temporary  visit  and  would  shortly  return.*^ 

§  743.  Tt  has  been  decided  in  Alabama,  that  the  attacliment 
plaintiff,  when  sued  for  malicious  prosecution,  is  not  confined,  in 
his  defence,  to  showhig  that  the  facts  on  which  he  sued  out  the 
attachment  existed  and  amounted  to  a  probable  cause ;  but  he 
may  show  that  other  causes  existed,  for  which,  under  the  statute, 
the  attachment  might  have  issued.  For  instance,  where  the 
ground  on  which  the  attachment  was  obtained  was,  that  the  de- 
fendant was  about  to  dispose  of  his  property  fraudulently,  with 
intent  to  avoid  the  payment  of  the  debt  sued  for ;  it  was  held,  in 
the  action  for  nialicious  prosecution,  that  the  question  was,  not 

^  Foster  v.  Sweeny,  14  Sergeant  &  Rawle,  386. 

2  Havis  V.  Taylor,  13  Alabama,  324. 

3  Havis  I'.  Taylor,  13  Alabama,  324;  Pitts  v.  Burroughs,  6  Ibid.  733. 

[5331 


§  744:  ACTION  FOR   MALICIOUS  ATTACHMENT.      [CHAP.  XXXIX. 

whether  the  precise  ground  stated  in  the  affidavit  was  true,  but 
whether  the  attachment  was  wrongfully  or  vexatiously  sued  out ; 
and  that  it  was  a  complete  defence,  if  the  attachment  plaintiff 
could  show  that  any  one  of  the  causes  existed  which  would  have 
warranted  him  in  resorting  to  the  process  ;  for  instance,  that  the 
defendant  was  about  to  remove  his  property  out  of  the  State,  with 
intent  to  avoid  the  payment  of  the  debt  upon  which  the  attachment 
was  founded.^  In  tlie  same  State,  it  was  also  intimated,  that  it 
might  be  shown  to  the  jury,  to  repel  the  presumption  of  malice, 
that  the  plaintiff  was  indebted  to  the  defendant  in  another  State, 
and  ran  away  from  there  with  his  property  to  avoid  the  payment 
of  his  debts.^  And  it  was  there  held,  that  the  insolvency  of  the 
attachment  defendant,  though  constituting  no  bar  to  an  action 
brought  by  him  against  the  plaintiff  for  maliciously  suing  out  the 
attachment,  was  proper  to  be  given  in  evidence,  as  a  circumstance 
to  be  considered  by  the  jury  in  ascertaining  the  damages  he  had 
sustained  by  his  credit  being  injured.^  And  the  Supreme  Court  of 
that  State  decided,  that  while  it  was  inadmissible  for  the  defendant 
to  prove  that,  when  he  sued  out  his  attachment,  there  was  another 
attachment  in  the  hands  of  the  sheriff  against  the  same  party,  yet 
he  might  prove  that  another  attachment  had  been  issued,  and  his 
knowledge  of  that  fact,  previous  to  the  issuing  of  his  attachment, 
as  tending  to  rebut  the  presumption  of  malice  in  him.*  And  so 
lie  may  show  in  evidence,  that  the  attachment  was  taken  out  under 
advice  of  counsel ;  which  is  good  to  rebut  the  idea  of  malice,  but 
not  as  a  justification.^ 

§  744.  When,  in  the  attachment  suit,  the  plaintiff  shall  have 
recovered  judgment,  it  is,  until  reversed,  conclusive  of  probable 
cause,  so  far  as  indebtedness  enters  into  that  question ;  and  in  the 
action  for  malicious  attachment  there  can  be  no  re-examination 
of  tliat  point.^  Not  so,  however,  when  the  judgment  in  the  at- 
tachment suit  shall  have  been  for  the  defendant.  There,  the 
attaclunent  plaintiff,  when  sued  for  malicious  attachment,  may,  in 
order  to  show  probable  cause,  give  evidence  to  prove  that  there 

1  Kirkscy  v.  Jones,  7  Alabama,  622. 

2  Melton  V.  Troutman,  15  Alabama,  535 

8  Donncll  v.  Jones,  13  Alabama,  490.     See  Mayfield  v.  Cotton,  21  Texas,  1. 

*  Yarbroutrh  v.  Hudson,  19  Alabama,  653;  Goldsmith  v.  Picard,  27  Ibid.  142. 
6  Raver  v.  Webster,  3  Iowa,  502. 

*  Jones  V.  Kirksey,  10  Alabama,  839. 

[534] 


CHAP.  XXXIX.]      ACTION  FOR  iL\LICIOUS   ATTACIDIENT.  §  745 

was  a  debt,  though  he  failed  to  recover  on  it.  The  question  is  not 
whether  a  demand  shall  be  recovered,  upon  which  a  jury  has  be- 
fore passed,  and  the  court,  upon  their  verdict,  has  considered  ought 
not  to  be  recovered ;  but  whether  the  attachment  plaintiff  had 
probable  cause  for  instituting  the  proceeding,  and  if  he  had  not, 
whether  he  was  influenced  by  malice.  Any  evidence,  then,  which 
goes  to  establish  the  existence  of  the  demand  at  the  time  the  at- 
tachment was  issued,  tends  to  prove  probable  cause,  and  to  rebut 
the  presumption  of  malice  which  would  arise  from  the  discharge 
of  the  defendant  in  the  attachment  suit.^ 

§  745.  The  rules  as  to  damages,  applicable  in  other  cases  of 
malicious  prosecution,  apply  to  actions  for  malicious  attachment. 
Those  rules  are  thus  expressed  by  Mr.  Greenleaf :  "  Whether  the 
plaintiff  has  been  prosecuted  by  indictment,  or  by  civil  proceed- 
ings, the  principle  of  awarding  damages  is  the  same ;  and  he  is 
entitled  to  indemnity  for  the  peril  occasioned  him  in  regard  to  his 
life  and  liberty,  for  the  injury  to  his  reputation,  his  feelings,  and 
his  person,  and  for  all  the  expenses  to  which  he  necessarily  has 
been  subjected.  And  if  no  evidence  is  given  of  particular  dam- 
ages, yet  the  juiy  are  not  therefore  obliged  to  find  nominal  damages 
only.  Where  the  prosecution  was  by  suit  at  common  law,  no 
damages  will  be  given  for  the  ordinary  taxable  costs,  if  they  were 
recovered  in  that  action ;  but  if  there  was  a  malicious  arrest,  or 
the  suit  was  malicious,  and  without  probable  cause,  the  extraordi- 
nary costs,  as  between  attorney  and  client,  as  well  as  all  other 
expenses  necessarily  incurred  in  defence,  are  to  be  taken  into  the 
estimate  of  damages."^ 

Li  Alabama  it  was  held,  that  fees  paid  to  counsel  for  defending 
the  original  suit,  if  reasonable  and  necessarily  incurred,  might  be 
proven  and  taken  into  consideration  by  the  jury  in  the  assessment 
of  damages ;  ^  and  that  injuries  to  the  credit  and  business  of  a 
merchant,  resulting  from  taking  out  an  attachment  against  him  on 
the  ground  of  fraud,  might  legitimately  be  averred  and  proved.* 
But  where,  in  such  a  case,  a  witness  was  asked  "  what  was  the 
usual  profit  made  by  such  establishments  in  the  neighborhood  of 

^  Marshall  v.  Betner,  17  Alabama,  832.     See  Gaddis  v.  Lord,  10  Iowa,  141. 

2  2  Greenleaf  on  Evidence,  §  456. 

8  Marshall  v.  Betner,  17  Alabama,  832. 

*■  Goldsmith  v.  Picard.  27  Alabama,  142 ;  O'Grady  v.  Julian,  34  Ibid.  88. 

[535] 


§  745  ACTION  FOR  MALICIOUS   ATTACHMENT.      [CHAP.  XXXIX. 

the  plaintiff  in  the  same  kind  of  business,"  the  question  was  held 
inadmissible,  because  such  testimony  could  furnish  no  reliable 
data  for  determining  the  loss  sustained  by  the  plaintiff;  while  its 
tendency  .was  to  multiply  the  issues  before  the  jury  almost  indefi- 
nitely.^ 

1  O'Grady  v.  Julian,  34  Alabama,  88. 
[536] 


APPET^DIX. 


APPENDIX. 


THE  LEADING  STATUTORY  PROVISIONS  OF  THE  SEVERAL  STATES  AND 
TERRITORIES  OF  THE  UNITED  STATES,  IN  RELATION  TO  SUITS  BY 
ATTACHMENT. 

ALABAMA. 

Attachments  may  issue:  1.  To  enforce  the  collection  of  a  debt, 
whether  it  be  due  or  not,  at  the  time  the  attachment  is  taken  out :  2.  For 
any  moneyed  demand,  the  amount  of  which  can  be  certainly  ascertained : 
3.  To  recover  damages  for  a  breach  of  contract,  when  the  damages  are  not 
certain  or  Hquidated :  4.  "When  the  action  sounds  in  damages  merely. 

The  following  are  the  grounds  of  attachment:  — 

1.  When  the  defendant  resides  out  of  the  State. 

2.  "When  the  defendant  absconds. 

3.  When  the  defendant  secretes  himself  so  that  the  ordinary  process  of 
law  cannot  be  served  on  him. 

4.  When  the  defendant  is  about  to  remove  out  of  the  State. 

5.  When  the  defendant  is  about  to  remove  his  property  out  of  the  State, 
so  that  the  plaintiff  will  probably  lose  his  debt,  or  have  to  sue  for  it  in 
another  State. 

6.  When  the  defendant  is  about  fraudulently  to  dispose  of  his  property. 

7.  When  the  defendant  has  fraudulently  disposed  of  his  property. 

8.  When  the  defendant  has  moneys,  property,  or  effects,  liable  to  satisfy 
his  debts,  which  he  fraudulently  withholds. 

For  causes  of  action  specified  under  the  first  two  heads  above  stated,  an 
attachment  may  be  issued  by  any  judge  of  the  Circuit  Court,  returnable  to 
any  county  in  the  State,  or  by  the  clerk  of  the  Circuit  Court,  judge  of  the 
Probate  Court,  or  any  justice  of  the  peace,  within  their  respective  counties. 
In  cases  under  those  heads,  the  officer,  before  issuing  the  attachment,  must 
require  the  plaintiff,  his  agent  or  attorney,  to  make  in  writing  and  subscribe 
an  oath  of  the  amount  of  the  debt  or  demand,  and  that  it  is  justly  due ; 
also,  that  one  of  the  grounds  of  attachment  above  specified  exists,  and  that 
the  attachment  is  not  sued  out  for  the  purpose  of  vexing  or  harassing  the 
defendant.     He  must  further  require  the  plaintiff,  his  agent  or  attorney, 


540  APPENDIX. 

to  execute  a  bond  in  double  the  amount  claimed  to  be  due,  with  sufficient 
surety,  payable  to  the  defendant,  with  condition  that  the  plaintiff  will 
prosecute  the  attachment  to  effect,  and  pay  the  defendant  all  such  damages 
as  he  may  sustain  from  the  wrongful  or  vexatious  suing  out  of  the  at- 
tachment. 

For  causes  of  action  specified  under  the  third  and  fourth  heads  above 
stated,  the  attachment  can  be  issued  only  by  a  judge  of  the  Circuit  Court 
or  chancellor,  returnable  to  any  county.  When  an  attachment  is  applied 
for  in  those  cases,  the  judge  or  chancellor,  before  issuing  it,  must  require 
the  plaintiff,  his  agent  or  attorney,  in  addition  to  the  afiidavit  and  bond 
required  in  other  cases,  to  make  affidavit  in  writing  of  the  special  facts 
and  circumstances,  so  as  to  enable  him  to  determine  the  amount  for  which 
a  levy  must  be  made ;  which  sum  may,  at  the  discretion  of  the  court,  be 
reduced,  at  the  return  term  of  the  attachment,  on  affidavit  of  the  defendant, 
and  the  levy  released  to  the  amount  of  such  reduction. 

A  non-resident  may  obtain  an  attachment  against  a  non-resident  for  an 
existing  debt,  or  ascertained  liability ;  but  the  plaintiff,  his  agent  or  at- 
torney, must,  in  addition  to  the  oath  necessary  in  other  cases,  swear  that 
according  to  the  best  of  his  knowledge,  information,  and  belief,  the  defend- 
ant has  not  suflScient  property  within  the  State  of  his  residence,  wherefrom 
to  satisfy  the  debt ;  and  must  also  give  bond  as  in  other  cases,  with  surety 
resident  in  this  State. 

Corporations,  either  foreign  or  domestic,  may  sue  or  be  sued  by  attach- 
ment. 

Attachments  may  be  executed  on  real  and  personal  property,  and  by 
summoning  garnishees. 

The  garnishee  is  liable  for  indebtedness,  to  the  defendant,  and  for  per- 
sonal and  real  property  and  choses  in  action,  belonging  to  the  defendant. 

An  attachment  may  be  levied  on  the  joint  and  separate  estate  of  joint 
obligors,  promisors,  or  partners,  whether  resident  or  non-resident. 

Executors  and  administrators  may  be  garnished  for  a  debt  due  by  the 
testator  or  intestate  to  the  defendant ;  and  for  debts  due  to  legatees  or  dis- 
tributees; but  no  judgment  can  be  rendered  against  them  on  account  of  the 
latter,  until  a  settlement  of  the  estate,  unless  they  assent  to  the  legacy,  or 
admit  assets  to  pay  the  amount  claimed,  or  some  portion  thereof,  out  of  the 
distributive  share  of  the  debtor. 

Money  in  the  hands  of  an  attorney  at  law,  sheriff,  or  trustee,  may  be 
attached ;  as  also  may  a  debt  in  suit.' 

ARKANSAS. 

To  obtain  an  attachment,  the  creditor  must  file  with  his  declaration  an 
affidavit,  of  himself  or  some  other  person  for  him,  stating  that  the  defend- 

1  Code  of  Alabama  of  1852,  Title  2,  Ch.  I. 


APPENDIX.  541 

ant  is  justly  indebted  to  the  plaintiff  in  a  sum  stated,  and  also  that  the 
defendant  is  not  a  resident  of  the  State,  or  that  he  is  about  to  remove  out 
of  the  State,  or  that  he  is  about  to  remove  his  goods  and  effects  out  of  the 
State,  or  that  he  so  secretes  himself  that  the  ordinary  process  of  law  can- 
not be  served  on  him ;  and  shall  also  file  a  bond  to  the  defendant,  with 
sufficient  secui-ity,  to  be  approved  by  the  clerk,  in  double  the  amount  of 
his  claim  as  sworn  to,  conditioned  that  he  will  prove  his  debt  or  demand 
on  a  trial  at  law,  or  that  he  will  pay  such  damages  as  shall  be  adjudged 
against  him. 

The  writ  authorizes  the  attachment  of  the  defendant  by  all  and  singular 
his  goods  and  chattels,  lands  and  tenements,  credits  and  effects ;  and  under 
it  any  person  in  whose  hands  or  possession  are  any  such  lands,  tenements, 
goods,  chattels,  moneys,  credits,  or  effects  of  the  defendant,  may  be  sum- 
moned as  garnishee,  and  may  be  required  to  answer  allegations  and  inter- 
rogatories exhibited  against  him.  His  answer  may  be  denied  by  the 
plaintiff,  and  a  trial  of  the  truth  thereof  be  had.^ 

C ALIFOKNIA. 

Creditors  may  proceed  by  attachment. 

Before  an  attachment  shall  be  issued,  the  plaintiff,  his  agent  or  attorney, 
shall  take  and  subscribe  an  affidavit  that  the  defendant  is  indebted  to  the 
plaintiff  in  the  sum  of  two  hundred  dollars  or  over,  specifying  the  amount 
as  near  as  may  be,  over  and  above  all  legal  set-offs,  and  that  the  sum  is 
due  upon  contract,  express  or  implied,  and  that  the  deponent  knows,  or  has 
good  reason  to  believe,  either :  — 

1.  Tiiat  the  defendant  has  absconded,  or  is  about  to  abscond  from  this 
State,  or  that  he  is  concealed  therein  to  the  injury  of  his  creditors;  or, 

2.  Tliat  the  defendant  has  removed,  or  is  about  to  remove  any  of  his 
property  out  of  this  State,  with  intent  to  defraud  his  creditors ;  or, 

3.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
respecting  which  the  suit  is  brought ;  or, 

4.  That  the  defendant  is  a  non-resident  of  this  State ;  or, 

5.  That  the  defendant  has  fraudulently  conveyed,  disposed  of,  or  con- 
cealed his  property,  or  a  part  of  it,  or  is  about  fraudulently  to  convey, 
di.-pose  of,  or  conceal  the  same,  or  a  part  of  it,  with  intent  to  defraud  his 
creditors. 

Before  an  attachment  can  issue,  the  plaintiff,  or  some  responsible  person 

in  his  behalf,  shall  execute  a  bond  with  sufficient  surety,  in  a  sum  at  least 

double  tlie  amount  of  the  demand  sworn  to,  payable  to  the  defendant,  and 

conditioned  that  the  plaintiff  shall  pay  to  the  defendant  all  damages  that  he 

•  may  incur  by  reason  of  tlie  wrongful  suing  out  of  the  writ. 

Pending  the  action,  the  court,  upon  being  satisfied  of  the  insufficiency 
-  English's  Digest  of  Statutes  of  iii-kansas,  171-183. 


542  APPENDIX. 

of  the  bond,  may  require  another  bond,  and  such  further  surety  as  shall 
be  necessary. 

The  writ  shall  command  the  sheriff  to  attach  so  much  of  the  lands,  ten- 
ements, goods,  chattels,  moneys,  and  effects  of  the  defendant,  not  exempt 
from  execution,  wheresoever  the  same  may  be  found  within  the  county,  as 
will  be  sufficient  to  satisfy  the  plaintiff's  demand. 

Real  estate  shall  be  bound,  and  the  attachment  shall  be  a  Hen  thereon, 
from  the  time  when  a  certified  copy  of  the  attachment,  with  a  description 
of  such  real  estate,  shall  be  deposited  in  the  recorder's  office  of  the  county 
where  it  is  situated ;  and  the  recorder  shall  note  on  the  writ  the  day,  hour, 
and  minute  when  he  received  it. 

Attachment  may  issue,  although  the  debt  or  demand  of  the  plaintiff  be 
not  due,  when  it  is  shown  by  the  affidavit :  1st.  That  the  defendant  is  about 
to  abscond  from  the  State,  or  that  he  is  concealed  therein,  to  the  injury  of 
his  creditors :  or,  2d.  That  he  is  about  to  remove  any  of  his  property  out 
of  the  State,  or  that  he  is  about  fraudulently  to  convey,  dispose  of,  or  con- 
ceal the  same,  with  intent  to  defraud  liis  creditors.  In  such  case  no  judg- 
ment shall  be  rendered  until  the  debt  becomes  due,  but  the  attachment 
shall  give  a  lien  as  in  other  cases. 

If  tlie  plaintiff,  or  any  one  in  his  behalf,  make  affidavit,  stating  that  he 
verily  believes  that  any  person  (naming  him)  has  money,  property,  credits, 
or  effects  in  his  possession  belonging  to  the  defendant,  or  is  indebted  to  the 
defendant,  and  deliver  the  affidavit  to  the  officer  havuig  the  writ,  the  officer, 
if  he  cannot  attach  such  property  and  get  possession  thereof,  shall  serve 
the  writ  and  affidavit  upon  such  person,  by  giving  him  a  copy  thereof  with 
a  written  notice  to  appear  in  court  at  the  return  of  the  writ.  From  the 
day  of  such  service,  the  person  so  notified  as  garnishee  shall  stand  liable 
to  the  plaintiff  in  attachment,  to  the  amount  of  the  property,  moneys,  and 
credits  in  his  hands,  and  debts  due,  or  to  become  due,  from  him  to  the 
defendant,  and  shall  attend  the  court  in  accordance  with  the  notice,  and 
answer  under  oath  all  questions  put  to  him  touching  the  property,  credits, 
and  effects  of  the  defendant  in  the  garnishee's  possession,  or  within  his 
knowledge,  and  as  to  all  debts  then  due,  or  to  become  due  from  him  to  the 
defendant. 

If  the  answer  of  the  garnishee  be  not  satisfactory  to  the  plaintiff,  an 
issue, >^hall  be  made  up  between  the  plaintiff  and  the  garnishee,  and  tried 
as  in  other  actions.^ 

COLORADO. 

An  attachment  issues,  upon  any  creditor,  his  agent  or  attorney,  filing  an 
affidavit  and  bond  in  the  office  of  the  clerk  of  the  .District  Court. 

The  affidavit  must  state  that  the  defendant  is  indebted  to  such  creditor 

1  Laws  of  California,  1849-50,  pp.  412-416. 


APPENDIX.  543 

in  a  sum  exceeding  twenty  dollars,  stating  the  nature  and  amount  of  such 
indebtedness,  as  near  as  may  be,  and  that  the  debtor 

1.  Has  departed,  or  is  about  to  depart  from  this  State,  with  the  intention 
of  having  his  effects  removed  therefrom ;  or, 

2.  Is  about  to  remove  his  property  from  this  State,  to  the  injury  of  such 
creditor ;  or, 

3.  Conceals  himself,  or  stands  in  defiance  of  an  officer,  so  that  process 
cannot  be  served  upon  him ;  or, 

4.  Is  not  a  resident  of  this  State  ;  or, 

5.  Is  converting,  or  is  about  to  convert,  his  property  into  money,  or 
otherwise  dispose  thereof,  with  the  intent  of  placing  it  beyond  the  reach  of 
such  creditor. 

The  bond,  with  security,  must  be  in  double  the  sum  sworn  to  be 
due,  conditioned  for  the  satisfying  of  all  costs  which  may  be  awarded 
to  the  defendant,  or  to  any  others  interested  in  the  proceedings,  and  all 
damages  which  shall  be  recovered  against  the  plaintiff  for  wrongfully  suing 
out  the  attachment. 

Under  the  writ,  lands,  tenements,  goods,  chattels,  rights,  credits,  moneys, 
and  effects  of  the  debtor  may  be  attached. 

When  the  officer  is  unable  to  find  property  of  the  defendant,  sufficient  to 
satisfy  the  writ,  he  must  summon  all  persons  within  his  county,  whom  the 
creditor  shall  designate  as  having  any  property,  effects,  or  choses  in  action 
in  their  possession  or  power,  belonging  to  the  defendant,  or  who  are  in  any 
wise  indebted  to  the  defendant,  to  appear  and  answer  as  garnishees.-' 

C  ONNECTICUT. 

The  process  in  civil  actions  in  this  State  is  by  summons  or  attachment. 

Attachment  may  be  granted  against  the  goods  and  chattels  of  the  de- 
fendant, and  for  want  thereof,  against  his  lands,  or  against  his  person,  when 
not  exempted  from  imprisonment  on  the  execution  in  the  suit. 

When  the  plaintiff  prays  out  an  attachment,  a  sufficient  bond  must  be 
given,  conditioned  to  prosecute  his  action  to  effect,  and  answer  all  damages 
in  case  he  make  not  his  plea  good. 

Whenever  the  goods  or  effects  of  a  debtor  are  concealed  in  the  hands  of 
his  attorney,  agent,  factor,  or  trustee,  so  that  they  cannot  be  found  to  be 
attached,  or  where  debts  are  due  from  any  person  to  a  debtor,  any  creditor 
may  bring  his  action  against  such  debtor,  and  insert  in  his  writ  a  direction 
to  the  officer  to  leave  a  true  and  attested  copy  thereof,  at  least  fourteen 
days  before  the  session  of  the  court  to  which  it  is  returnable,  with  such 
debtor's  attorney,  agent,  factor,  trustee,  or  debtor,  or  at  the  place  of  his  or 
their  usual  abode,  and  it  shall  be  the  duty  of  the  officer  serving  such  writ 
to  leave  a  copy  thereof  according  to  such  direction  ;  and  from  the  time 
1  Laws  of  Colorado  of  1861,  pp.  201  et  seq. 


544  APPENDIX. 

of  leaving  such  copy,  all  the  goods  and  effects  in  the  hands  of  such  atttor- 
ney,  agent,  factor,  or  trustee,  and  any  debt  due  from  such  debtor  to  tbe 
defendant,  shall  be  secured  in  his  hands,  to  pay  such  judgment  as  the 
plaintiff  shall  recover,  and  may  not  otherwise  be  disposed  of,  by  such  attor- 
ney, agent,  factor,  trustee,  or  debtor. 

The  garnishee  so  summoned  may  be  required  to  appear  in  court,  and 
answer  on  oath  whether  he  has  any  goods  or  effects  of  the  defendant,  or  is 
indebted  to  him. 

Any  debt,  legacy,  or  distributive  share,  due,  or  which  may  become  due,  to 
any  person,  from  the  estate  of  any  deceased  person,  or  from  any  insolvent 
estate  assigned  for  the  benefit  of  creditors,  may  be  attached  in  the  hands 
of  the  executor,  administrator,  or  trustee.^ 

DELAWARE. 

A  writ  of  domestic  attachment  issues  against  an  inhabitant  of  this  State 
after  a  return  to  a  summons,  or  capias,  sued  and  delivered  to  the  sheriff,  ten 
days  before  the  return  thereof,  showing  that  the  defendant  cannot  be  found, 
and  proof,  satisfactory  to  the  court,  of  the  cause  of  action  ;  or  upon  affidavit 
made  by  the  plaintiff,  or  some  other  credible  person,  that  the  defendant  is 
justly  indebted  to  the  plaintiff  in  a  sum  exceeding  fifty  dollars,  and  has 
absconded  from  the  place  of  his  usual  abode,  or  gone  out  of  the  State,  with 
intent  to  defraud  his  creditors,  or  to  elude  process,  as  is  believed. 

A  writ  of  foreign  attachment  issues  against  any  person  not  an  inhabitant 
of  this  State,  after  a  return  to  a  summons,  or  capias,  issued  and  delivered  to 
the  sheriff,  ten  days  before  the  return  thereof,  showing  that  the  defendant 
cannot  be  found,  and  proof,  satisfactory  to  the  court,  of  the  cause  of  action ; 
or  upon  affidavit  made  by  the  plaintiff,  or  some  other  credible  person,  that 
the  defendant  resides  out  of  the  State,  and  is  justly  indebted  to  the  plaintiff 
in  a  sum  exceeding  fifty  dollars. 

The  writ  of  attachment  commands  the  officer  to  attach  the  defendant  by 
all  his  goods  and  chattels,  rights  and  credits,  lands  and  tenements,  in  whose 
hands,  or  possession,  soever,  the  same  may  be  found  in  his  bailiwick  ;  and  to 
summon  the  defendant's  garnishees  to  appear  in  court  to  declare  what  goods, 
chattels,  rights,  credits,  moneys,  or  effects  they  have  in  their  hands. 

The  attachment  is  dissolved  by  the  defendant's  appearing  and  putting  in 
special  bail,  at  any  time  before  judgment. 

On  the  return  of  the  writ,  the  court  appoints  three  persons  to  audit  the 
claims  of  the  defendant's  creditors,  and  to  adjust  and  ascertain  all  their  de- 
mands, including  that  of  the  attachment  plaintiff.  These  auditors  give  pub- 
lic notice  to  the  defendant's  creditors,  of  the  time  and  place  of  their  meetings; 

1  For  the  pro^asions  other  than  those  relating  to  garnishees,  see  Revised  Statutes  of 
Connecticut  of  1849,  pp.  49,  50;  for  tliose  relating  to  garnishees,  see  Ibid.  1]5,  119, 
120 


APPENDIX.  545 

and  they  investigate  any  claims  presented,  in  any  form  they  judge  best,  and 
may  examine  any  creditor  upon  oath. 

On  the  receipt  of  the  proceeds  of  sale  of  the  property  attached,  the 
auditors  calculate  and  settle  the  proportions  and  dividends  due  the  several 
creditors,  allowing  to  the  creditor  attaching  and  prosecuting  the  same 
to  judgment,  a  double  share,  or  dividend,  if  such  shall  not  exceed  his 
debt. 

Creditors  failing  to  present  their  claims  to  the  auditors,  or  to  make  proof 
thereof,  are  debarred  from  receiving  any  share  or  dividend  in  the  distribu- 
tion to  be  made  by  the  auditors ;  and  before  any  creditor  shall  receive  any 
dividend,  he  must  enter  into  recognizance,  with  surety,  to  secure  the  repay- 
ment of  the  same,  if  the  debtor  shall,  within  one  year  thereafter,  appear 
in  the  court,  and  disprove  or  avoid  the  debt  upon  which  the  dividend  is 
paid.^ 

FL  ORID  A. 

An  attachment  issues,  upon  the  plaintiff,  his  agent  or  attorney,  making 
oath  in  writing,  that  the  amount  of  the  debt  or  sum  demanded  is  actually 
due,  and  also  that  the  party  from  whom  it  is  due  is  actually  removing 
out  of  the  State,  or  resides  beyond  the  limits  thereof,  or  absconds,  or  con- 
ceals himself,  so  that  the  ordinary  process  of  law  cannot  be  served  upon 
him,  or  is  removing  his  property  beyond  the  limits  of  the  State,  or  secreting, 
or  fraudulently  disposing  of  the  same,  for  the  purpose  of  avoiding  the 
payment  of  his  just  debts. 

When  an  executor  or  administrator  resides  or  has  removed  beyond  the 
limits  of  this  State,  and  there  are  assets  of  the  testator  or  intestate  in  this 
State,  an  attachment  may  be  obtained  against  such  assets,  upon  oath  being 
made  of  the  debt  or  sum  demanded  being  actually  due,  and  that  the  ex 
ecu  tor  or  administrator  resides  or  has  removed  beyond  the  limits  of  th»> 
State  ;  unless  he  have  an  authorized  and  publicly  known  agent  in  the 
-State  ;  in  which  case  a  summons  served  on  the  agent  is  as  valid  as  if  served 
on  his  principal. 

No  attachment  issues  until  the  plaintiff,  in  person,  or  by  his  agent  or  at 
torney,  enters  into  bond,  with  at  least  two  good  and  sufficient  securities, 
payable  to  the  defendant,  in  at  least  double  the  debt  or  sum  demanded,  con- 
ditioned to  pay  all  costs  and  damages  the  defendant  may  sustain  in  conse- 
quence of  improperly  suing  out  the  attachment ;  and  this  bond  shall  not, 
on  account  of  informality,  be  adjudged  void,  as  against  the  obligors,  nor 
shall  they  be  discharged  therefrom,  although  the  attachment  be  dissolved 
by  reason  thereof. 

In  the  case  of  two  or  more  attachments  against  the  same  person,  and 
several  judgments  obtained  at  the  same  term,  they  shall  be  satisfied  pro 
rata,  out  of  the  judgments  obtained  against  the  garnishees  in  any  of  the 
1  Revised  Statutes  of  Delaware  of  1852,  ch.  104. 


546  APPENDIX. 

suits,  unless  the  defendant  have  sufficient  other  property  to  satisfy  the 
same. 

An  attachment  may  issue  on  a  debt  not  due,  if  the  same  will  become  due 
within  nine  months  from  the  time  the  writ  is  applied  for,  and  the  debtor  is 
at  that  time  actually  removing  his  property  beyond  the  limits  of  the  State, 
or  is  fraudulently  disposing  of  or  secreting  the  same,  for  the  purpose  of 
avoiding  the  payment  of  his  just  debts. 

Where  no  property  of  the  defendant  can  be  found  to  levy  on,  any  per- 
son owing  the  defendant,  or  having  any  moneys,  goods,  chattels,  or  effects 
of  the  defendant  in  his  hands,  may  be  summoned  as  garnishee ;  but  if  the 
plaintiff  fail  to  obtain  a  judgment  against  the  garnishee,  no  judgment  shall 
be  rendered  against  the  defendant,  and  if  judgment  shall  have  been  ren- 
dered against  him,  it  shall  be  cancelled.^ 

GEORGIA. 

The  judges  of  the  superior  court,  or  justices  of  the  inferior  court,  or 
any  one  of  them,  and  any  justice  of  the  peace,  upon  complaint  made  on 
oath  by  a  creditor  that  his  debtor  resides  out  of  the  State,  or  is  actually 
removing  without  the  limits  of  the  State,  or  any  county,  or  absconds,  or 
conceals  himself,  or  stands  in  defiance  of  a  peace  officer,  so  that  the  ordi- 
nary process  of  law  cannot  be  served  on  him,  may  grant  an  attachment 
against  the  estate  of  such  debtor.  The  remedy  by  attachment  may  be 
resorted  to  by  non-resident  as  well  as  resident  creditors. 

The  affidavit  may  be  made  by  the  creditor,  or  his  agent  or  attorney,  in 
fact  or  at  law,  by  swearing  to  the  best  of  his  belief,  from  the  evidence  in 
his  possession ;  and  in  case  of  non-resident  creditors  may  be  made  before 
any  Commissioner  appointed  by  the  State  of  Georgia  to  take  affidavits,  or 
before  any  judge  or  judicial  officer  authorized  to  administer  oaths,  or  before 
any  Notary  Public. 

Before  the  attachment  can  issue,  the  plaintiff,  or  his  agent  or  attorney  at 
law,  or  in  fact,  shall  execute  a  bond  to  the  defendant,  with  security,  in  a 
sum  at  least  equal  to  double  the  amount  sworn  to  be  due,  or  to  become 
due,  for  satisfying  and  paying  all  costs  which  may  be  incurred  by  the 
defendant,  in  case  the  plaintiff  shall  discontinue,  or  be  cast  in,  his  suit,  and 
also  all  damages  which  may  be  recovered  against  the  plaintiff  for  suing  out 
the  same. 

Wiiere  a  debt  is  not  due,  and  the  debtor  is  removing,  or  is  about  to 
remove  without  the  limits  of  the  State,  and  oath  is  made  by  the  creditor, 
his  agent  or  attorney,  of  the  amount  of  the  debt  to  become  due,  and  that 
the  debtor  is  removing,  or  is  about  to  remove  without  the  limits  of  the 
State,  an  attachment  may  issue  against  the  property  of  the  debtor. 

In  any  case  where  a  person  has  been  a  security  for  another  in  a  note, 
1  Thompson's  Digest  of  Florida  Laws,  of  1847,  pp.  367-375. 


APPENDIX.  547 

oblio-ation,  or  other  instrument  of  writing,  and  has  been  compelled  to  pay 
off  the  same  by  legal  process,  or  has  paid  by  being  called  upon  by  the  per- 
son holding  such  note,  obligation,  or  other  instrument  in  writing ;  and  in 
cases  where  suit  is  pending  on  such  note,  &c.,  against  the  principal,  and 
security  or  securities,  or  against  either  or  any  of  them,  and  in  cases  where 
such  note,  &c.,  to  which  there  is  security  is  not  due  and  the  principal  debt- 
or is  removing,  or  is  about  to  remove,  or  has  removed  without  the  limits 
of  the  State  or  any  county ;  and  oath  being  made  by  the  security,  his  agent, 
or  attorney,  in  fact  or  at  law,  of  the  facts,  and  of  his  liability  on  such  note, 
&c.,  and  that  his  principal  is  removing,  or  is  about  to  remove,  or  has 
removed,  without  the  limits  of  the  State,  or  any  county  therein,  an  attach- 
ment may  issue  against  the  debtor,  in  favor  of  the  security.  And  in  such 
cases,  where  the  security  has  already  paid  the  debt,  he  may  proceed  to 
judgment  as  in  other  cases ;  and  where  a  suit  is  pending  against  the  securi- 
ty, or  where  the  debt  is  not  yet  due,  the  security  shall  have  a  lien  on  the 
attached  property  of  the  principal,  until  such  property  is  replevied,  or  the 
principal  shall  give  good  and  sufficient  security  to  the  plaintiff  for  the  pay- 
ment of  such  note,  &c.,  when  it  shall  become  due,  or  at  the  termination 
of  the  suit:  —  and  in  case  the  property  shall  not  be  replevied,  the  plaintiff 
shall  be  admitted  to  proceed  to  establish  his  demand  as  though  the  debt  was 
due,  or  the  suit  against  the  security  was  determined. 

Indorsers  of  notes,  obligations,  and  all  other  instruments  in  writing,  are 
entitled  to  the  same  remedy  as  provided  for  securities. 

In  all  cases  the  attachment  first  served  shall  be  first  satisfied. 

Iso  lien  shall  be  created  by  the  levying  of  an  attachment,  to  the  exclu- 
sion of  any  judgment  obtained  by  any  creditor,  before  judgment  is  obtained 
by  the  attaching  creditor. 

Judgment  on  attachment  shall  bind  no  other  property  than  that  attached, 
unless  the  defendant  shall  come  in  terms  of  the  law,  and  be  made  a  party 
to  the  attachment. 

Garnislimeiits  are  not  restricted  to  cases  of  attachment,  but  may  be 
made  in  all  cases  whatsoever,  either  at  law  or  in  equity,  whether  the 
subject-matter  of  the  suit  be  a  debt  or  not;  upon  the  plaintiff,  or  his  agent 
or  attorney,  making  an  affidavit  of  the  amount  of  the  debt  which  he  be- 
lieves to  be  due,  and  that  he  is  apprehensive  of  the  loss  of  the  same  or 
some  part  thereof  unless  the' summons  of  garnishment  issue;  and  may  be 
made  in  all  cases  where  execution  has  been  issued  on  a  judgment. 

Garnishees  are  required  to  answer  as  to  indebtedness  to  the  defendant, 
and  al.-o  as  to  money,  effects,  property,  either  real  or  personal,  or  evidences 
of  debt  belonging  to  the  defendant,  in  their  hands  or  possession,  at  the  time 
of  service  of  the  summons.^ 

1  Hotchkiss's  Compilation  of  Georgia  Laws,  of  1845,  pp.  551-562  ;  Cobb's  Digest  of 
Georgia  Laws,  of  1851,  pp.  69-88. 


548  APPENDIX. 


ILLINOIS. 

Attachments  are  issued  by  the  Clerks  of  the  Circuit  Courts. 

If  any  creditor,  his  agent  or  attorney,  file  an  affidavit  in  the  office  of  the 
Clerk,  setting  forth  that  the  defendant  is  indebted  to  him,  in  a  sum  exceed- 
ing twenty  dollars,  stating  the  nature  and  amount  of  the  indebtedness,  as 
near  as  may  be,  and  that  the  defendant  has  departed,  or  is  about  to  depart, 
from  the  State,  with  the  intention  of  having  his  effects  removed  therefrom  ; 
or  is  about  to  remove  his  property  from  the  State,  to  the  injury  of  the 
plaintiff;  or  conceals  himself,  or  stands  in  defiance  of  an  officer,  so  that 
process  cannot  be  served  upon  him ;  or  is  not  a  resident  of  the  State ;  the 
Clerk  issues  an  attachment,  commanding  the  lands,  tenements,  goods,  chat- 
tels, rights,  credits,  moneys,  and  effects  of  the  defendant,  of  every  kind,  in 
whose  hands  or  possession  the  same  may  be  found,  or  so  much  thereof  as 
will  be  sufficient  to  satisfy  the  claim  sworn  to,  with  interest  and  costs  of 
suit. 

Before  issuing  the  attachment,  the  Clerk  shall  take  bond  and  security 
from  the  plaintiff,  his  agent  or  attorney,  payable  to  the  defendant,  in 
double  the  sum  sworn  to  be  due,  conditioned  that  tlie  plaintiff  shall  prose- 
cute his  suit  with  effect,  or,  in'  case  of  failure  therein,  shall  well  and  truly 
pay  and  satisfy  the  defendant  all  such  costs  in  the  suit,  and  such  damages 
as  shall  be  awarded  against  the  plaintiff,  his  heirs,  executors,  or  adminis- 
trators, in  any  suit  or  suits  which  may  be  brought  for  wrongfully  suing 
out  the  attachment. 

One  or  more  of  several  joint  debtors  may  be  sued  by  attachment,  and 
the  others  by  summons. 

The  officer  summons  as  garnishees  all  persons  whom  the  plaintiff  desig- 
nates as  having  any  property,  effects,  or  choses  in  action,  in  their  posses- 
sion or  power  belonging  to  the  defendant,  or  who  are  in  any  wise  indebted 
to  the  defendant,  to  appear  in  court  on  the  return  day  of  the  writ,  and 
answer  on  oath  what  amount  they  are  indebted  to  the  defendant,  and  what 
property,  effects,  or  choses  in  action  belonging  to  the  defendant  they  had 
in  their  possession  or  power,  at  the  time  of  serving  the  attachment. 

Garnishees  are  required  to  respond,  in  writing  and  under  oath,  to  alle- 
gations and  interrogatories  filed  by  the  plaintiff,  touching  the  lands,  tene- 
ments, goods,  chattels,  moneys,  credits,  and  •effects  of  the  defendant,  and 
the  value  thereof,  in  their  possession,  custody,  or  charge,  or  from  them  due 
and  owing  to  the  defendant,  at  the  time  the  attachment  was  served,  or  at 
any  time  after,  or  which  may  thereafter  become  due. 

Whenever  the  plaintiff  shall  allege  that  any  garnishee  has  not  discovered 
the  true  amount  of  debts  due  from  him  to  the  defendant,  or  what  goods 
and  chattels  belonging  to  the  defendant  are  in  his  possession,  the  court 
shall  direct  a  jury  to  be  impanelled,  to  inquire  what  is  the  true  amount  due 


APPENDIX.  549 

from  the  garnishee  to  the  defendant,  and  what  goods  and  chattels  are  in 
bis  possession  belonging  to  the  defendant.  Upon  this  inquiry  witnesses 
may  be  examined  by  the  respective  parties  as  in  ordinary  cases.^ 

INDIANA. 

The  plaintiff,  at  the  commencement  of  an  action,  or  at  any  time  after- 
wards, may  have  an  attachment  against  the  property  of  the  defendant,  in 
the  cases  and  in  the  manner  following  :  — 

"Where  the  action  is  for  the  recovery  of  money, 

1.  Where  the  defendant,  or  one  of  several  defendants,  is  a  foreign  cor- 
poration, or  a  non-resident  of  this  State ; 

2.  Where  the  defendant,  or  one  of  several  defendants,  is  secretly  leav- 
ing, or  lias  left  the  State,  with  intent  to  defraud  his  creditors  ;  or, 

3.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him ;  or, 

4.  Is  removing  or  about  to  remove  his  property  subject  to  execution, 
or  a  material  part  thereof,  out  of  this  State,  not  leaving  enough  therein  to 
satisfy  the  plaintiff's  claim ;  or, 

5.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property  subject  to 
execution,  or  suffered  or  permitted  it  to  be  sold,  with  the  fraudulent  intent 
to  cheat,  hinder,  or  delay  his  creditors  ;  or, 

6.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  subject 
to  execution,  with  such  intent. 

No  attachment,  except  for  the  causes  mentioned  in  the  fourth,  fifth,  and 
sixth  clauses,  shall  issue  against  any  debtor  while  his  wife  and  family  re- 
main settled  within  the  county  where  he  usually  resided  prior  to  his  ab- 
sence, if  he  shall  not  continue  absent  from  the  State  more  than  one  year 
after  he  shall  have  absented  himself,  unless  an  attempt  be  made  to  conceal 
his  absence. 

If  the  wife  or  family  of  the  debtor  shall  refuse,  or  are  unable  to  give  an 
account  of  the  cause  of  his  absence,  or  of  the  place  where  he  may  be  found, 
or  give  a  false  account  of  either,  such  refusal,  inhability,  or  false  account, 
.  shall  be  deemed  an  attempt  to  conceal  his  absence. 

The  plaintiff,  or  some  person  in  his  behalf,  must  make  an  affidavit  show- 
ing, — 

1.  The  nature  of  the  plaintiff's  claim  ; 

2.  That  it  is  just ; 

3.  The  amount  which  he  believes  the  plaintiff  ought  to  recover; 

4.  That  there  exists  in  the  action  some  one  of  the  grounds  for  an  at- 
tachment above  enumerated. 

The  plaintiff,  or  some  one  in  his  behalf,  must  execute  a  written  under- 
taking, with  sufficient  surety,  to  be  approved  by  the  clerk,  payable  to  the 
defendant,  to  the  effect  that  the  plaintiff  will  duly  prosecute  his  proceeding 
1  Revised  Statutes  of  Elinois,  1845,  ch.  9,  pp.  62-70. 


550  APPENDIX. 

in  attachment,  and  will  pay  all  damages  which  may  be  sustained  by  the  de- 
fendant, if  the  proceedings  of  the  plain tiiFsIiall  be  wrongful  and  oppressive. 

Upon  the  filing  of  such  affidavit  and  written  undertaking,  in  the  office  of 
the  clerk,  he  issues  an  order  of  attachment  to  the  sheriff,  which  binds  the 
defendant's  property  in  the  county,  and  becomes  a  lien  thereon,  from  the 
time  of  its  delivery  to  the  sheriff,  in  the  same  manner  as  an  execution. 

Under  this  order,  property,  real  and  personal,  is  attached,  and  garnishees 
are  summoned.  If,  after  an  order  of  attachment  is  placed  in  the  hands  of  a 
sheriff,  any  property  of  the  defendant's  is  removed  from  the  county,  the 
sheriff  may  pursue  and  attach  it  in  any  county  within  three  days  after  the 
removal. 

Estate  descended  to  non-resident  heirs  or  devisees,  or  vested  in  non-resi- 
dent executors  or  administrators,  shall  be  liable  to  an  attachment  for  debt 
or  other  demands  against  the  decedent's  estate. 

If  when  an  order  of  attachment  issues,  or  at  any  time  before  or  after- 
wards, the  plaintiff,  or  other  person  in  his  behalf,  shall  file  with  the  clerk 
an  affidavit  that  he  has  good  reason  to  believe  that  any  named  person  has 
property  of  the  defendant  of  any  description  in  his  possession,  or  under  his 
control,  which  the  sheriff  cannot  attach  by  virtue  of  such  order ;  or  that 
such  person  is  indebted  to  the  defendant,  or  has  the  control  or  agency  of 
any  property,  moneys,  credits,  or  effects  ;  or  that  the  defendant  has  any 
shares  or  interest  in  the  stock  of  any  association  or  corporation  ;  the  clerk 
shall  issue  a  summons  notifying  such  person,  corporation,  or  association,  to 
appear  and  answer  as  garnishee  in  the  action. 

Any  creditor  of  the  defendant,  upon  filing  his  affidavit  and  written  un- 
dertaking, as  required  of  the  attaching  creditor,  may,  at  any  time  before 
the  final  adjustment  of  the  suit,  become  a  party  to  the  action,  file  his  com- 
plaint, and  prove  his  claim  or  demand  against  the  defendant,  and  may  have 
any  person  summoned  as  garnishee  or  held  to  bail,  who  has  not  before  been 
summoned  or  held  to  bail. 

The  money  realized  from  the  attachment  and  the  garnishees  shall,  under 
the  direction  of  the  court,  be  paid  to  the  several  creditors,  in  proportion  to 
the  amount  of  their  several  claims  as  adjusted.^ 

IOWA. 

In  an  action  for  the  recovery  of  money,  the  plaintiff  may  cause  any 
property  of  the  defendant  which  is  not  exempt  from  execution,  to  be  at- 
tached at  the  commencement,  or  during  the  progress,  of  the  proceedings. 

The  grounds  for  obtaining  the  attachment  are  embodied  in  the  petition 

setting  forth  the  cause  of  action,  which  must  be  sworn  to,  and  must  state 

that,  as  the  affiant  verily  believes,  the  defendant  is  a  foreign  corporation, 

or  acting  as  such,  or  that  he  is  a  non-resident  of  the  State,  or  that  he  is 

^  2  Revised  Statutes  of  Indiana,  of  1852,  p.  62. 


APPEXDES;.  551 

in  some  manner  about  to  dispose  of  or  remove  his  property  out  of  the 
State,  without  leaving  sufficient  remaining  for  the  payment  of  his  debts, 
or  that  he  has  disposed  of  his  property  (in  whole  or  in  part),  with  intent 
to  defraud  his  creditors,  or  that  he  has  absconded,  so  that  the  ordinary 
process  cannot  be  served  upon  hina. 

If  the  plaintiff's  demand  is  founded  on  contract,  the  petition  must  state 
that  something  is  due,  and,  as  nearly  as  practicable,  the  amount. 

If  the  demand  is  not  founded  on  contract,  the  petition  must  be  presented 
to  some  judge  of  the  supreme,  district,  or  county  court,  who  shall  make  an 
allowance  thereon  of  the  amount  in  value  of  the  property  that  may  be 
attached. 

Property  of  a  debtor  may  be  attached  previous  to  the  time  when  the 
debt  becomes  due,  when  nothing  but  time  is  wanting  to  fix  an  absolute 
indebtedness,  and  when  the  petition,  in  addition  to  that  fact,  states  that 
the  defendant  is  about  to  dispose  of  his  property  with  intent  to  defraud 
his  creditors,  or  that  he  is  about  to  remove  from  the  State,  and  refuses  to 
make  any  arrangement  for  securing  the  payment  of  the  debt  when  it  falls 
due,  and  which  contemplated  removal  was  not  known  to  the  plaintiff  at 
the  time  the  debt  was  contracted. 

Before  any  property  can  be  attached,  the  plaintiff  must  file  with  the 
clerk  a  bond,  for  the  use  of  the  defendant,  with  sureties  to  be  approved 
by  the  clerk,  in  a  penalty  at  least  double  the  value  of  the  property  sought 
to  be  attached,  and  in  no  case  less  than  two  hundred  and  fifty  dollars,  if 
in  the  district  court,  nor  less  than  fifty  dollars,  if  in  a  justice's  court,  condi- 
tioned that  the  plaintiff  will  pay  all  damages  which  the  defendant  may  sus- 
tain by  reason  of  the  wrongful  suing  out  of  the  attachment.  In  an  action 
on  such  bond  the  plaintiff  therein  may  recover,  if  he  shows  that  the  attach- 
ment was  wrongfully  sued  out,  and  if  wilfully  wrong,  he  may  recover  exem- 
plary damages.  Nor  need  he  wait  until  the  principal  suit  is  determined, 
before  he  brings  suit  on  the  bond. 

Stock,  or  an  interest  owned  by  the  defendant  in  any  company,  and  also 
debts  due  him,  or  property  of  his  held  by  third  persons,  may  be  attached. 

A  slieriff  or  constable  may  be  garnished  for  money  of  the  defendant  in 
liis  hands.  So  may  a  judgment  debtor  of  the  defendant,  when  the  judg- 
ment has  not  been  previously  assigned ;  and  also  an  executor,  for  money 
due  from  the  decedent  to  the  defendant. 

The  plaintiff  may,  in  writing,  direct  the  sheriff  to  take  the  answer  of  the 
garnishee,  and  append  the  same  to  his  return.  In  such  case  the  sheriff  has 
power  to  administer  an  oath  to  garnishees,  requiring  them  to  make  true 
answers  to  the  questions  to  be  propounded,  the  form  of  which  is  prescribed, 
and  which  requires  the  garnishee  to  state  whether  he  is  indebted  to  the  de- 
fendant, or  has  in  his  possession  or  under  his  control  any  property,  rights, 
or  credits  of  the  defendant,  or  knows  of  any  debts  owing  to  the  defendant, 


652  APPENDIX. 

whether  due  or  not,  or  any  property,  rights,  or  credits  belonging  to  him, 
and  in  the  possession  or  under  the  control  of  others. 

If  the  garnishee  refuse  to  answer  fully  and  unequivocally  the  interroga- 
tories, he  shall  be  required  to  appear  and  answer  on  the  first  day  of  the 
next  term  of  the  court. 

When  the  answer  of  the  garnishee  is  made  at  the  district  court,  the 
plaintiff  may  controvert  any  facts  contained  therein,  and  specified  by  him, 
and  issue  being  thereupon  joined,  may  be  tried  in  the  usual  manner.^ 

KANSAS. 

The  plaintiff  in  a  civil  action  for  the  recovery  of  money  may,  at  or  after 
the  commencement  thereof,  have  an  attachment  against  the  property  of  the 
defendant,  upon  any  of  the  following  grounds  : 

1.  When  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of 
this  State ;  or, 

2.  Has  absconded,  with  the  intent  to  defraud  his  creditors ;  or, 

3.  Has  left  the  county  of  his  residence,  to  avoid  the  service  of  a  sum- 
mons ;  or, 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him  ;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  jurisdic- 
tion of  the  court,  with  the  intent  to  defraud  his  creditors ;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for 
the  purpose  of  placing  it  beyond  the  reach  of  his  creditors  ;  or, 

7.  Has  property,  or  rights  in  action,  which  he  conceals  ;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of,  his 
property,  or  part  thereof,  with  the  intent  to  defraud  his  creditors ;  or, 

9.  Fraudulently  contracted  the  debt,  or  incurred  the  obligation,  for 
which  suit  has  been  or  is  about  to  be  brought. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which  the 
action  is  biought,  in  any  of  the  cases  mentioned,  when  there  is  filed  in  his 
office  an  affidavit  and  undertaking. 

The  affidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney,  and  show 

1 .  The  nature  of  the  plaintiflTs  demand ; 

2.  That  it  is  just ; 

3.  Tlie  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover;  and 

4.  The  existence  of  some  one  of  the  above  grounds  for  an  attachment. 
The  undertaking  must  be  by  one  or  more  sureties  of  the  plaintiff,  to  be 

approved  by  the  clerk,  not  exceeding  double  the  amount  of  the  plaintiff's 
claim,  to  the  effect  that  the  plaintiff  shall  pay  to  the  defendant  all  damngcs, 
which  he  may  sustain  by  reason  of  the  attachment,  if  the  order  be  wrong- 
fully obtained. 

Under  the  writ  the  officer  may  attach  lands,  tenements,  goods,  chattels, 
stocks,  rights,  credits,  moneys,  and  effects. 

1  Code  of  Iowa,  of  1851,  ch.  109,  pp.  264  -  269. 


APPENDIX.  653 

Garnishees  may  be  summoned,  upon  the  plaintiff,  his  agent  or  attorney, 
making  oath,  in  writing,  that  he  has  good  reason  to  believe,  and  does  be- 
lieve, that  any  person  or  corporation,  to  be  named,  has  property  of  the  de- 
fendant (describing  the  same)  in  his  possession  ;  and  the  garnishee  stands 
liable,  from  the  time  of  service  of  notice  upon  him,  to  the  plaintiff,  for  all 
property,  moneys,  and  credits  in  his  hands,  or  due  from  him  to  the  defend- 
ant. 

The  court,  or  judge,  in  vacation,  may  appoint  a  receiver,  who  shall  take 
possession  of  all  notes,  due-bills,  books  of  account,  accounts,  and  all  other 
evidences  of  debt  that  have  been  taken  by  the  officer,  and  proceed  to  settle 
and  collect  the  same. 

Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his  prop- 
erty, with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to 
hinder  or  delay  them  in  the  collection  of  their  debts,  or  is  about  to  make 
such  sale,  or  conveyance,  or  disposition  of  his  property,  with  such  fraudu- 
lent intent ;  or  is  about  to  remove  his  property,  or  a  material  part  thereof, 
with  the  intent  or  to  the  effect  of  cheating  or  defrauding  his  creditors,  or 
of  hindering  or  delaying  them  in  the  collection  of  their  debts,  a  creditor 
may  bring  an  action  on  his  claim  before  it  is  due,  and  have  an  attachment 
against  the  property  of  the  debtor. 

In  such  case  the  plaintiff,  his  agent  or  attorney,  must  make  oath,  in 
writing,  showing  the  nature  and  amount  of  the  plaintiff's  claim,  that  it  is 
just,  when  the  same  will  become  due,  and  the  existence  of  some  one  of  the 
grounds  of  attachment  just  mentioned  as  applicable  to  this  particular  case.^ 

KENTUCKY. 

The  plaintiff  in  a  civil  action  may,  at  or  after  the  commencement  thereof, 
have  an  attachment  against  the  property  of  the  defendant,  in  the  cases  and 
upon  the  grounds  hereinafter  staled,  as  a  security  for  the  satisfaction  of  such 
judgment  as  may  be  recovered :  — 

First.  In  an  action  for  the  recovery  of  money  where  the  action  is  against 

1.  A  defendant  or  several  defendants,  who,  or  some  one  of  whom,  is  a 
foreign  corporation,  or  a  non-resident  of  this  State ;  or, 

2.  Who  has  been  absent  therefrom  four  months ;  or, 

3.  Has  departed  from  this  State  with  intent  to  defraud  his  creditors ;  or, 

4.  Has  left  the  county  of  his  residence,  to  avoid  the  service  of  a  sum- 
mons ;  or, 

0.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him ;  or, 
6.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  out  of  this 
State,  not  leaving  enough  therein  to  satisfy  the  plaintiff's  claim ;  or, 

7    Has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or  suffered 

1  Compiled  Laws  of  Kansas  of  1862,  pp.  154-164. 


554  APPENDIX. 

or  permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat,  hinder,  or 
delay  his  creditors  ;  or, 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  with 
such  intent. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defendant, 
or  defendants,  or  any  of  them,  is  a  foreign  corporation,  or  a  non-resident 
of  this  State,  for  any  claim  other  than  a  debt  or  demand  arising  upon  con- 
tract. 

Secondly.  In  an  action  to  recover  the  possession  of  personal  property, 
where  it  has  been  ordered  to  be  delivered  to  the  plaintiff,  and  where  the 
property,  or  part  thereof,  has  been  disposed  of,  concealed,  or  removed,  so 
that  the  order  for  its  delivery  cannot  be  executed  by  the  sheriff. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which  the 
action  is  brought,  in  any  of  the  above-mentioned  cases,  upon  an  affidavit 
of  the  plaintiff  being  filed,  showing,  — 

1.  The  nature  of  the  plaintifi''s  claim  ; 

2.  That  it  is  just ; 

3.  The  amount  which  the  afiiant  believes  the  plaintiff  ought  to  recover ; 
and, 

4.  The  existence  in  the  action  of  some  one  of  the  grounds  for  an  attach- 
ment above  enumerated,  in  the  first  subdivision  ;  and  in  the  case  mentioned 
in  the  second  subdivision,  where  it  is  shown,  by  such  affidavit,  or  by  the 
return  of  the  sheriff  upon  the  order  for  the  delivery  of  the  property 
claimed,  and  the  facts  mentioned  in  that  subdivision  exist. 

Where  the  return  by  the  proper  officer  upon  a  summons  against  a 
defendant  states  that  he  has  left  the  county  to  avoid  the  service  of  the 
summons,  or  has  concealed  himself  therein  for  that  purpose,  it  shall  be 
equivalent  to  the  statement  of  the  fact  in  an  affidavit. 

The  order  of  attachment  shall  not  be  issued  until  there  has  been  exe- 
cuted in  the  clerk's  office,  by  one  or  more  sufficient  sureties  of  the  plaintiff, 
-i  bond  to  the  effect  that  the  plaintiff  shall  pay  to  the  defendant  all  damages 
vhich  he  may  sustain  by  re^fson  of  the  attachment,  if  the  order  is  wrong- 
ully  obtained,  not  exceeding  double  the  amount  of  the  plaintiff's  claim. 

The  attachment  is  to  be  served  first  on  the  defendant's  personal  property, 
<ther  than  slaves ;  if  enough  thereof  is  not  found,  then  on  his  slaves ;  and 
sastly,  on  his  real  estate. 

Where  the  property  to  be  attached  is  a  fund  in  court,  the  execution  of 
the  order  of  attachment  shall  be  by  leaving  with  the  clerk  of  the  court  a 
copy  thereof,  with  a  notice  specifying  the  fund ;  and  where  several  orders 
of  attachment  are  executed  upon  such  fund  on  the  same  day,  they  shall  be 
satisfied  out  of  it  ratably. 

The  sheriff  shall  not,  in  executing  an  order  of  attachment  upon  personal 
property  licld  by  the  defendant  jointly  or  in  common  with  another  person, 


APPENDIX.  555 

take  possession  of  such  property,  until  there  has  been  executed  a  bond  to 
such  other  person,  by  one  or  more  sufficient  sureties  of  the  plaintiff,  to  the 
effect  tliat  lie  shall  pay  to  such  person  the  damages  he  may  sustain  by  the 
wrongful  suing  out  of  the  order,  not  exceeding  double  the  amount  of  the 
plaintiff's  claim. 

An  order  of  attachment  binds  the  defendant's  property  in  the  county, 
which  might  be  seized  under  an  execution  against  him,  from  the  time  of 
the  delivery  of  the  order  to  the  sheriff,  in  the  same  manner  as  an  execu- 
tion would  bind  it;  and  the  lien  of  the  plaintiff  is  completed  upon  any 
property  or  demand  of  the  defendant,  by  executing  the  order  upon  it  in 
the  manner  directed  by  law. 

Garnishees  may  be  summoned,  and  are  required  to  answer  on  oath.'^ 

LOUISIANA. 

The  process  of  attachment  in  this  State  belongs  to  the  class  of  proceed- 
ings known  in  the  Code  of  Practice  as  Conservatory  Acts  which  may 
accompany  the  demand. 

An  attachment  in  the  hands  of  third  persons  is  a  mandate,  which  a  cred- 
itor obtains  from  a  competent  judge,  or  a  clerk  of  a  court,  commanding  the 
seizure  of  any  property,  credit,  or  right  belonging  to  his  debtor,  in  what- 
ever hands  it  may  be  found,  to  satisfy  the  demand  which  he  intends  to 
bring  against  him. 

A  creditor  may  obtain  such  attachment  of  the  property  of  his  debtor,  in 
the  following  cases  :  — 

1.  AVhen  the  debtor  is  about  leaving  permanently  the  State,  without 
there  being  a  possibility,  in  the  ordinary  course  of  judicial  proceedings,  of 
obtaining  or  executing  judgment  against  him  previous  to  his  departure,  or 
when  the  debtor  has  already  left  the  State  permanently ; 

2.  When  the  debtor  resides  out  of  the  State  ; 

3.  When  he  conceals  himself  to  avoid  being  cited  and  forced  to  answer 
to  the  suit  intended  to  be  brought  against  him. 

A  creditor  may  in  the  like  manner  obtain  a  mandate  of  seizure  against 
all  species  of  property  belonging  to  his  debtor,  real  or  personal,  whether 
it  consists  of  slaves,  credits,  or  rights  of  action,  and  whether  it  be  in  the 
debtor's  possession,  or  in  that  of  third  persons,  by  whatever  title  the  same 
be  held,  either  as  deposit  or  placed  under  their  custody. 

The  property  of  a  debtor  may  be  attached  in  the  hands  of  third  persons 
by  his  creditor,  in  order  to  secure  the  payment  of  a  debt,  wliatever  may 
be  its  nature,  whether  the  amount  be  liquidated  or  not,  provided  the  term 
of  payment  have  arrived,  and  the  creditor,  his  agent,  or  attorney  in  fact, 
who  prays  for  the  attachment,  state  expressly  and  positively  the  amount 
which  he  claims. 

1  Kentucky  Code  of  Practice  in  Civil  Cases,  of  1851,  §  242  and  following. 


556  APPENDIX. 

"Where  the  debt  or  obligation  is  not  yet  due,  any  judge  of  competent  juris- 
diction may  order  a  writ  of  attachment  to  issue,  whenever  he  shall  be  satis- 
fied by  the  oath  of  the  creditor  or  his  agent  of  the  existence  of  the  debt, 
and  upon  the  creditor  or  his  agent  swearing  that  the  debtor  is  about  to 
remove  his  property  out  of  the  State  before  the  debt  becomes  due. 

A  creditor,  wishing  to  have  the  property  of  his  debtor  attached,  must 
demand  it  in  a  petition  presented  to  a  competent  judge,  with  a  declaration 
made  under  oath  at  the  foot  of  the  petition,  stating  the  amount  of  the  sum 
due  to  him,  and  that  he  verily  believes  that  his  debtor  is  either  on  the  eve 
of  leaving  the  State  forever ;  that  he  has  left  it  permanently ;  that  he  re- 
sides out  of  the  State  ;  or  that  he  conceals  himself  in  order  to  avoid  being 
cited.  In  the  absence  of  the  creditor,  the  oath  may  be  made  by  the 
agent  or  attorney  in  fact  of  the  creditor,  to  the  best  of  his  knowledge  and 
belief. 

The  creditor,  his  agent  or  attorney  in  fact,  praying  such  attachment,  must, 
besides,  annex  to  his  petition  his  obligation  in  favor  of  the  defendant,  for  a 
sum  exceeding  by  one  half  that  which  he  claims,  with  the  surety  of  one 
good  and  solvent  person,  residing  within  the  jurisdiction  of  the  court  to 
which  the  petition  is  presented,  as  a  security  for  the  payment  of  such 
damages  as  the  defendant  may  recover  against  him,  in  case  it  should  be 
decided  that  the  attachment  was  wrongfully  obtained. 

If  a  creditor  know,  or  suspect,  that  a  third  person  has,  in  his  possession, 
property  belonging  to  his  debtor,  or  that  he  is  indebted  to  the  debtor,  he 
may  make  such  person  a  party  to  the  suit,  by  having  him  cited,  to  declare 
on  oath  what  property  belonging  to  the  defendant  he  has  in  his  possession, 
or  in  what  sum  he  is  indebted  to  the  defendant,  even  when  the  term  of  pay- 
ment has  not  yet  arrived.  The  person  thus  made  a  party  to  the  suit  is 
termed  the  garnishee ;  and  he  is  required  to  answer  categprically  under 
oath  interrogatories  propounded  to  him  by  the  plaintiff.'^ 

MAINE. 

In  this  State  an  original  writ  may  be  framed  either  to  attach  the  goods  or 
estate  of  the  defendant,  or  for  want  thereof  to  take  his  body ;  or  it  may  be 
an  original  summons,  either  with  or  without  an  order  to  attach  the  goods  or 
estate. 

All  goods  and  chattels  may  be  attached,  and  held  as  security  to  satisfy 
the  judgment  for  damages  and  costs,  which  the  plaintiff  may  recover, 
except  such  as  from  their  nature  and  situation  have  been  considered  as 
exempted  from  attachment,  according  to  the  principles  of  the  common 
law,  as  adopted  and  practised  in  this  State,  and  such  as  are  hereinafter 
mentioned. 

1  Tliese  provisions  are  found  in  Articles  20S,  209,  239,  240,  241,  242,  213,  244,  245, 
246,  and  247,  of  Part  II.  Title  1,  fli.  2,  §  4,  of  the  Louisiana  Code  of  Practice,  and  in 
Bullard  and  Curry's  Dij^est  of  Louisiana  Laws,  18  and  19. 


APPENDIX.  657 

Real  estate,  liable  to  be  taken  on  execution,  may  be  attached. 

A  right  in  equity  of  redeeming  lands  mortgaged,  or  taken  in  execution, 
may  be  attached  on  mesne  process ;  and,  when  so  attached,  if,  before  the 
levy  of  the  execution,  the  lands  so  mortgaged  or  taken  in  execution  are 
redeemed,  and  the  encumbrance  removed,  the  attachment  shall  hold  the 
premises  discharged  of  the  mortgage  or  levy,  as  eifectually  as  if  no  mort- 
gage or  levy  had  existed,  and  the  premises  been  attached.^ 

All  personal  actions,  except  those  of  detinue,  replevin,  actions  on  the  case 
for  malicious  prosecution,  slander  by  writing  or  speaking,  and  those  for  as- 
sault and  battery,  may  be  commenced  by  foreign  attachment,  or  trustee  pro- 
cess, in  the  supreme  judicial  court,  or  district  court,  or,  when  the  amount 
demanded  in  damages  is  not  less  than  five  dollars,  nor  more  than  twenty 
dollars,  befure  a  municipal  or  police  court,  or  a  justice  of  the  peace. 

The  writ  authorizes  an  attachment  of  goods  and  estate  of  the  principal 
defendant,  in  his  own  hands,  as  well  as  in  the  hands  of  trustees. 

Service  of  the  writ  on  the  trustee  shall  bind  all  goods,  effects,  or  credits 
of  the  defendant,  intrusted  or  deposited  in  his  hands  or  possession,  to  re- 
spond the  final  judgment  in  the  action,  in  like  manner  as  goods  or  estate, 
when  attached  by  the  ordinary  process. 

Any  debt  or  legacy,  due  from  an  executor  or  administrator,  and  any 
goods,  effects,  and  credits  in  his  hands  as  such,  may  be  attached  by  process 
of  foreign  attachment. 

When  any  person  summoned  as  trustee  is  bound  to  deliver  to  the  de- 
fendant any  specific  articles,  he  shall  deliver  the  same,  or  so  much  thereof 
as  may  be  necessary,  to  the  ofiicer  holding  the  execution  ;  and  the  same 
may  be  sold  by  the  officer,  and  the  proceeds  applied  and  accounted 
for,  in  the  same  manner  as  if  they  had  been  taken  on  execution  in  common 
form. 

No  person  shall  be  adjudged  a  trustee  in  either  of  the  following  cases,  viz. : 

1.  By  reason  of  having  drawn,  accepted,  made,  or  indorsed  any  nego- 
tiable bill,  draft,  note,  or  other  security  ; 

2.  By  reason  of  any  money  or  other  thing,  received  or  collected  by  him, 
as  a  sheriff  or  other  ofiicer,  by  force  of  an  execution  or  other  legal  process 
in  favor  of  the  defendant  in  the  foreign  attachment,  although  the  same 
should  have  been  demanded  of  him,  previously,  by  the  defendant ; 

3.  By  reason  of  any  money  in  his  hands  as  a  public  ofiicer,  and  for  which 
he  is  accountable,  as  such  merely,  to  the  defendant ; 

4.  By  reason  of  any  money  or  other  thing,  due  from  him  to  the  defend- 
ant, unless  it  is,  at  the  time  of  the  service  of  the  writ  upon  him,  due  abso- 
lutely, and  without  depending  on  any  contingency ; 

5.  By  reason  of  any  debt  due  from  him  on  a  judgment,  so  long  as  he  is 
liable  to  an  execution  on  the  judgment ; 

1  Revised  Statutes  of  Maine,  of  1840-41,  pp.  484,  485 


558  APPENDIX. 

6.  By  reason  of  any  amount  due  from  him  to  the  defendant,  as  wages  for 
his  personal  labor,  for  a  time  not  exceeding  one  month ; 

7.  Where  service  was  made  on  him  by  leaving  a  copy,  and  before  actual 
notice  of  such  service,  or  reasonable  ground  of  belief  that  the  same  has 
been  made,  he  shall  have  paid  the  debt  due  to  the  defendant,  or  given  his 
negotiable  security  therefor. 

Any  money,  or  other  thing,  due  to  the  defendant,  may  be  attached  before 
it  has  become  payable,  provided  it  be  due  absolutely  and  without  any  con- 
tingency ;  but  the  trustee  shall  not  be  compelled  to  pay  or  deliver  it  before 
the  time  appointed  therefor  by  the  contract.^ 

MARYLAND. 

A  creditor  may  obtain  an  attachment,  whether  he  be  a  citizen  thereof 
or  not,  against  his  debtor,  who  is  not  a  citizen  thereof  and  not  residing 
therein. 

If  any  citizen  of  the  State,  being  indebted  to  another  citizen  thereof, 
shall  actually  run  away,  abscond,  or  fly  from  justice,  or  secretly  remove 
himself  from  his  place  of  abode,  with  intent  to  evade  the  payment  of  his 
just  debts,  an  attachment  may  be  obtained  against  him. 

On  the  oath  or  affirmation  of  the  creditor,  made  before  any  judge  of  the 
general  court,  justice  of  the  county  court,  or  justice  of  the  peace  of  this 
State,  or  before  any  judge  of  any  other  of  the  United  States,  that  the  debtor 
is  bond  fide  indebted  to  him,  in  a  sum  named,  over  and  above  all  discounts, 
and  at  the  same  time  producing  the  bond,  bill,  protested  bill  of  exchange, 
promissory  note,  or  other  instrument  of  writing,  or  account,  by  which  the 
debtor  is  indebted ;  and  also,  on  the  oath  of  the  creditor,  of  the  existence 
of  any  of  the  grounds  above  mentioned  as  authorizing  the  issuing  of  an 
attachment;  the  judge  of  the  general  court,  justice  of  the  county  court,  or 
justice  of  the  peace,  issues  his  warrant  to  the  clerk  of  the  court,  to  issue, 
and  the  clerk  thereupon  issues,  an  attachment  against  the  lands,  tenements, 
goods,  chattels,  and  credits  of  the  defendant.^ 

An  attachment  may  be  laid  upon  debts  due  the  defendant  upon  judg- 
ments or  decrees,  rendered  or  passed  by  any  court  of  this  State,  and  judg- 
ment of  condemnation  thereof  may  be  had,  as  upon  other  debts  due  the 
defendant.  Execution  may  nevertheless  issue  upon  such  judgment ;  but 
the  money  made  thereon  shall  be  paid  into  court  to  abide  the  event  of  the 
attachment  proceedings.^ 

It  may  also  be  laid  upon  any  interest  the  defendant  may  have  in  the 
capital  or  joint-stock  of  any  corporation,  or  in  the  debt  of  any  corporation, 
transferable  upon  the  books  thereof.^ 

1  Keviscd  Statutes  of  Maine,  of  1840-41,  pp.  527-535. 

2  Dorsey's  Compilation  of  Laws  of  Maryland,  320. 

3  Ibid.  1067  '  *  Ibid.  1101 


APPENDIX.  550 

The  provisions  of  the  law  extend  to  corporations,  whether  plaintiffs  or 
defendants.^ 

A  garnishee  is  required  to  answer  on  oath  written  interrogatories, 
touching  the  property  of  the  defendant  in  his  possession  or  charge,  or  by 
him  due  and  owing  at  the  time  of  serving  the  attachment,  or  at  any  other 
time ;  and  if  the  garnishee  fail  to  do  so,  the  court  is  required  to  render 
judgment  against  him  for  the  amount  of  the  judgment  against  the  de- 
fendant." 

A  garnishee  may  plead  on  behalf  of  the  defendant  such  pleas  as  the 
defendant  might  do,  if  he  had  appeared  to  the  action.^ 

Some  confusion  existed,  prior  to  the  passage  of  the  Act  of  1854,  ch.  153, 
as  to  the  parties  who  might  obtain  or  become  subject  to  proceedings  on 
attachment.  This  state  of  things  was  ended  by  the  passage  of  the  last- 
named  act,  by  which  it  was  provided,  that  every  person  and  every  body 
corporate,  that  has  the  right  to  become  a  plaintiff  in  any  action  or  pro- 
ceeding before  any  judicial  tribunal  in  this  State  shall  have  the  right  to 
become  a  plaintiff  in  an  attachment  against  a  non-resident  of  this  State  or 
against  a  person  absconding :  —  and  that  every  person,  who  does  not  reside 
in  this  State,  and  every  person  who  absconds,  may  be  made  a  defendant  in 
attacliment. 

Every  person  who  shall  actually  run  away,  abscond,  or  fly  from  justice, 
or  secretly  remove  him  or  herself  from  his  or  her  place  of  abode,  with  in- 
tent to  evade  the  payment  of  his  or  her  just  debts,  or  to  injure  or  defraud 
his  or  her  creditor  or  creditors,  shall  be  considered  as  having  absconded  : 
and  an  averment  in  the  oath  of  the  plaintiff  against  a  person  as  having  ab- 
sconded, shall  without  other  words  be  a  sufficient  averment  of  any  such 
conduct. 

MASSACHUSETTS. 

Original  writs  may  be  framed,  either  to  attach  the  goods  or  estate  of  the 
defendant,  or  for  want  thereof  to  take  his  body ;  or,-  they  may  be  an  origi- 
nal summons,  either  with  or  without  an  order  to  attach  the  goods  or  estate. 

All  real  estates,  that  are  liable  to  be  taken  in  execution,  may  be  attached 
upon  the  original  writ,  in  any  action  in  which  any  debt  or  damages  are 
recoverable,  and  held  as  security  to  satisfy  such  judgment  as  the  plaintiff 
may  recover. 

All  goods  and  chattels,  that  are  liable  to  be  taken  in  execution,  ma}'  be 
attached,  except  such  as  from  their  nature  and  situation  have  been  consid- 
ered as  exempted  from  attachment,  according  to  the  principles  of  the  com- 
mon law,  as  adopted  and  practised  in  this  State.* 

All  personal  actions  may  be  commenced  by  the  process  of  foreign  attach- 
ment, or  trustee  process,  except  actions  of  replevin,  actions  on  the  case  for 

1  Ibid.  1089.  2  Ibid.  321.  3  jbid.  321. 

*  Revised  Statutes  of  Massachusetts,  of  1836,  pp.  547,  549. 


560  APPENDIX. 

malicious  prosecution,  or  for  slander,  either  by  writing  or  speaking,  and 
actions  of  trespass  for  assault  and  battery. 

The  writ  shall  authorize  an  attachment  of  the  goods  and  estate  of  the 
defendant,  in  his  own  hands,  and  also  in  the  hands  of  the  trustees. 

Every  person,  having  any  goods,  effects,  or  credits  of  the  defendant,  in- 
trusted or  deposited  in  his  hands  or  possession,  may  be  summoned  as  trus- 
tee, and  such  goods,  effects,  and  credits  shall  thereby  be  attached  and  held 
to  respond  to  the  final  judgment  in  the  suit,  in  like  manner  as  goods  or 
estate,  when  attached  by  the  ordinary  process. 

The  answers  and  statements,  sworn  to  by  any  person  summoned  as  a 
trustee,  shall  be  considered  as  true,  in  deciding  how  far  he  is  chargeable, 
but  either  party  may  allege  and  prove  any  other  facts,  not  stated  nor  de- 
nied by  the  supposed  trustee,  that  may  be  material  in  deciding  that  ques- 
tion. 

No  person  shall  be  adjudged  a  trustee,  in  either  of  the  following  cases,  to 
wit :  — 

1.  By  reason  of  having  drawn,  accepted,  made,  or  indorsed  any  nego- 
tiable bill,  draft,  note,  or  other  security  ; 

2.  By  reason  of  any  money  or  other  thing,  received  or  collected  by 
him,  as  a  sheriff  or  other  officer,  by  force  of  an  execution  or  other  legal 
process,  in  favor  of  the  defendant,  although  the  same  should  have  been 
previously  demanded  of  him  by  the  defendant ; 

3.  By  reason  of  any  money  in  his  hands  as  a  public  officer,  and  for 
which  he  is  accountable,  merely  as  such  officer  to  the  defendant ; 

4.  By  reason  of  any  money  or  other  thing  due  from  him  to  the  defend- 
ant, unless  H  is,  at  the  time  of  the  service  of  the  writ  on  him,  due  absolutely, 
and  with<mt  depending  on  any  contingency ; 

5.  By  reason  of  any  debt  due  from  him  on  a  judgment,  so  long  as  he  is 
liab^  to  an  execution  on  the  judgment. 

Legacies  and  debts  due  from  executors  and  administrators,  and  any  other 
g'wds,  effects,  or  credits,  in  the  hands  of  executors  or  administrators,  as 
^uch,  may  be  attached.^ 

MICHIGAN. 

The  grounds  of  attachment  in  this  State  are,  — 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond,  from  this 
"State,  or  that  he  is  concealed  therein  to  the  injury  of  his  creditors  ;  or, 

2.  That  he  has  assigned,  disposed  of,  or  concealed,  or  is  about  to  assign, 
dispose  of,  or  conceal,  any  of  his  property,  with  intent  to  defraud  his  cred- 
itors ;  or, 

3.  That  be  has  removed,  or  is  about  to  remove,  any  of  his  property  out 
of  this  State,  with  intent  to  defraud  his  creditors  ;  or, 

1  Revised  Statutes  of  Massachusetts,  of  1836,  pp.  643-651. 


APPENDIX. 


561 


4.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
respecting  which  the  suit  is  brought ;  or, 

5.  That  he  is  not  a  resident  of  this  State,  and  has  not  resided  therein 
for  three  months  immediately  preceding  the  time  of  making  the  affidavit 
for  obtaining  the  attachment ;  or, 

6.  That  the  defendant  is  a  foreign  corporation. 

In  order  to  obtain  an  attachment,  the  plaintiff,  or  some  person  for  him, 
must  make  an  affidavit  that  the  defendant  is  indebted  to  tiie  plaintiff,  and 
specifying  the  amount  of  the  indebtedness,  as  near  as  may  be,  over  and 
above  all  legal  set-offs,  and  that  the  same  is  due  upon  contract,  express  or 
implied,  or  upon  judgment,  and  that  the  deponent  knows,  or  has  good  rea- 
son to  believe,  the  existence  of  some  one  of  the  grounds  above  stated,  for 
obtaining  an  attachment. 

The  writ  commands  the  sheriff  to  attach  so  much  of  the  lands,  tenements, 
goods,  chattels,  moneys,  and  effects  of  the  defendant,  not  exempt  from  ex- 
ecution, wlieresoever  the  same  may  be  found  within  the  county,  as  will  be 
sufficient  to  satisfy  the  plaintiff 'e  demand.^ 

MINNES  OTA. 

In  an  action  for  the  recovery  of  money,  the  plaintiff  at  the  time  of  issuing 
the  summons,  or  at  any  time  afterwards,  may  have  the  property  of  the 
defendant  attached,  in  the  manner  hereinafter  stated,  as  security  for  the 
satisfaction  of  such  judgment  as  the  plaintiff  may  recover. 

The  warrant  of  attachment  is  issued  whenever  the  applicant,  or  some 
other  person,  makes  affidavit  that  a  cause  of  action  exists  against  the  de- 
fendant, specifying  the  amount  of  the  claim,  and  the  ground  thereof,  and 
that,  as  the  applicant  verily  believes,  the  defendant  is,  either, 

1.  A  foreign  corporation  ;  or, 

2.  Is  not  a  resident  of  this  State ;  or, 

3.  Has  departed  therefrom  with  the  intent  to  hinder  or  delay  his  cred- 
itors, or  to  avoid  the  service  of  a  summons ;  or, 

4.  Has  assigned,  secreted,  or  disposed  of,  or  is  about  to  assign,  secrete,  or 
dispose  of,  his  property,  so  as  to  hinder  or  delay  his  creditors ;  or, 

5.  That  the  debt  was  fraudulently  contracted. 

Before  issuing  the  warrant,  the  plaintiff  must  give  a  written  undertaking, 
with  sufficient  surety,  to  the  effect  that  if  the  defendant  recover  judgment, 
the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  defendant,  and 
all  damages  which  he  may  sustain  by  reason  of  the  attachment,  not  ex- 
ceeding the  sum  specified  in  the  undertaking,  which  shall  be  at  least  two 
hundred  and  fifty  dollars. 

Under  the  warrant  all  property  of  the  defendant  may  be  attached,  in- 
cluding his  rights  or  shares  in  the  stock  of  any  corporation.- 

1  Revised  Statutes  of  Michigan,  of  1846,  p.  514, 

2  Revised  Statutes  of  Minnesota,  of  1851,  pp.  346-349. 


562  .  APPENDIX. 

Proceedings  against  garnishees  are  not  exclusively  connected  with  suits 
by  attachment,  but  may  be  conducted  in  any  action,  upon  affidavit  being 
made,  that  any  person  has  property,  money,  or  effects  in  his  hands  or 
under  his  control,  belonging  to  tlie  defendant,  or  is  indebted  to  the  defend- 
ant. 

A  summons  then  issues  against  the  garnishee,  and  he  is  required  to 
appear  and  answer  under  oath.^ 

MISSISSIPPI. 

The  remedy  by  attachment  applies  to  all  actions  or  demands,  founded 
upon  any  indebtedness,  or  for  the  recovery  of  damages  for  the  breach  of 
any  contract,  express  or  implied,  and  to  actions  founded  upon  any  penal 
statute.' 

An  affidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney,  of  the 
amount  of  his  debt  or  demand,  to  the  best  of  his  knowledge  and  belief,  and 
of  the  existence  of  one  or  more  of  the  following  particulars :  — 

1.  That  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of  this 
State. 

2.  Tliat  he  has  removed,  or  is  about  to  remove,  himself  or  his  property 
out  of  this  State. 

3.  That  he  so  absconds,  or  conceals  himself,  that  he  cannot  be  served 
with  a  summons. 

4.  That  he  has  property  or  rights  in  action,  which  he  conceals,  or  unjustly 
refuses  to  apply  to  the  payment  of  his  debts. 

5.  That  he  has  assigned  or  disposed  of,  or  is  about  to  assign  or  dispose 
of,  his  property,  or  rights  in  action,  or  some  part  thereof,  with  intent  to 
defraud  his  creditors,  or  give  an  unfair  preference  to  some  of  them. 

6.  That  he  has  converted,  or  is  about  to  convert,  his  property  into 
money,  or  evidences  of  debt,  with  intent  to  place  it  beyond  the  reach  of  his 
creditors. 

7.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
for  which  suit  has  been  or  is  about  to  be  brought. 

In  a(l<lition  to  the  required  affidavit,  a  bond  must  be  executed  by  the 
plaintiff,  his  agent  or  attorney,  with  surety,  in  double  the  sum  for  which 
the  complaint  is  made,  payable  to  the  defendant,  and  conditioned  that  the 
plaintiff  shall  pay  and  satisfy  the  defendant  all  such  damages  as  he  shall 
sustain  by  reason  of  the  wrongful  suing  out  of  the  attachment,  and  shall 
pay  all  costs  which  may  be  awarded  against  the  plaintiff  in  the  suit. 

The  attachment  may  be  levied  on  lands,  tenements,  slaves,  money,  goods, 

chattels,  books  of  account,  and  evidences  of  indebtedness,  belonging  to  the 

defendant,  and  on  the  stock,  share,  or  interest  which  the  defendant  may 

have  in  any  copartnership,  or  incorporated  company ;  and  garnishees  may 

be  summoned. 

1  Ibid.  p.  451. 


APPENDIX.  563 

An  attachment  may  issue  for  a  debt  not  due,  if  the  creditor  make  affidavit 
that  he  has  just  cause  to  suspect,  and  verily  believes,  that  his  debtor  will 
remove  himself,  or  his  effects,  out  of  this  State,  before  the  debt  will  become 
due  and  payable,  with  intent  to  hinder,  delay,  or  defraud  his  creditors,  or 
that  he  hath  removed  with  like  intent,  leaving  property  in  this  State ;  and 
shall  give  bond  as  in  other  cases. 

The  defendant  may  file  a  plea  in  abatement,  verified  by  affidavit,  trav- 
ersing tlie  truth  of  the  alleged  causes  for  which  the  attachment  was  sued 
out,  and  a  jury  shall  be  impanelled  to  try  and  determine  whether  the  at- 
tachment was  wrongfully,  sued  out ;  and  if  they  find  that  it  was  wrongfully 
sued  out,  they  shall  assess  the  damages  against  the  plaintiff,  for  wrongfully 
suing  out  the  same,  and  the  attachment  shall  be  dismissed,  and  judgment 
entered  in  favor  of  the  defendant,  for  the  costs  and  the  damages  assessed 
by  the  jury.^ 

MISSOURI. 

The  plaintiff  in  any  civil  action  founded  upon  contract,  or  upon  wrongs 
done  to  personal  or  real  property,  may  have  an  attachment  against  the 
property  of  the  defendant,  or  that  of  any  one  or  more  of  several  defend- 
ants, in  any  of  the  following  cases  :  — 

1.  Where  the  defendant  is  not  a  resident  of  this  State. 

2.  Where  the  defendant  is  a  corporation  whose  chief  office  or  place  of 
business  is  out  of  this  State. 

3.  Where  the  defendant  conceals  himself  so  that  the  ordinary  process 
of  law  cannot  be  served  upon  him. 

4.  Where  the  defendant  has  absconded  or  absented  himself  from  his 
usual  place  of  abode  in  this  State,  so  that  the  ordinary  process  of  law  can- 
not be  served  upon  him. 

5.  Where  the  defendant  is  about  to  remove  his  property  or  effects  out 
of  this  State,  with  the  intent  to  defraud,  hinder,  or  delay  his  creditors. 

6.  Where  the  defendant  is  about  to  remove  out  of  this  State  with  the 
intent  to  change  his  domicile. 

7.  Where  the  defendant  has  fraudulently  conveyed  or  assigned  his  prop- 
erty or  effects  so  as  to  hinder  or  delay  his  creditors. 

8.  When  the  defendant  has  fraudulently  concealed,  removed,  or  disposed 
of  his  property  or  effects  so  as  to  hinder  or  delay  his  creditors. 

9.  When  the  defendant  is  about  fraudulently  to  convey  or  assign  his 
property  or  effects  so  as  to  hinder  or  delay  his  creditors. 

10.  When  the  defendant  is  about  fraudulently  to  conceal,  remove,  or 
dispose  of  his  property  or  effects  so  as  to  hinder  or  delay  his  creditors. 

11.  When  the  cause  of  action  accrued  out  of  this  State,  and  the  defend- 
ant has  absconded  or  secretly  removed  his  property  or  effects  into  this 
State. 

1  Revised  Code  of  Mississippi,  of  1857,  pp.  372-382 


564  APPENDIX. 

12.  Where  the  damages  for  which  the  action  is  brought  are  for  injuries 
arising  from  the  commission  of  some  felony  or  misdemeanor. 

13.  When  the  debtor  has  failed  to  pay  the  price  or  value  of  any  article 
or  thing  delivered,  which  by  contract  he  was  bound  to  pay  upon  the  de- 
livery. 

An  attachment  may  issue  on  a  demand  not  yet  due,  in  any  of  the  fore- 
going cases,  except  the  first,  second,  third,  and  fourth. 

In  order  to  obtain  an  attachment  an  affidavit  must  be  made  by  the 
plaintiff,  or  some  person  for  him,  which  shall  state  that  the  plaintiff  has 
a  just  demand  against  the  defendant,  and  the  amount  which  the  affiant 
believes  the  plaintiff  ought  to  recover,  and  that  he  has  good  reason  to  be- 
lieve, and  does  believe,  in  the  existence  of  one  or  more  of  the  causes  of 
attachment  above  set  forth.  If  the  cause  be  alleged  in  the  language  of  the 
statute  as  above  set  forth,  it  is  sufficient. 

Before  the  attachment  can  issue,  the  plaintiff,  or  some  responsible  per- 
son, as  principal,  with  one  or  more  securities,  resident  householders  of  the 
county  in  which  the  action  is  brought,  must  execute  a  bond  in  a  sum  at 
least  double  the  amount  sworn  to,  payable  to  the  State  of  Missouri,  con- 
ditioned that  the  plaintiff  shall  prosecute  his  action  without  delay,  and  with 
effect ;  refund  all  sums  of  money  that  may  be  adjudged  to  be  refunded  to 
the  defendant,  or  found  to  have  been  received  by  the  plaintiff,  and  not  justly 
to  him ;  and  pay  all  damages  and  costs  that  may  accrue  to  any  defendant 
or  garnishee,  by  reason  of  the  attachment,  or  any  process  or  proceeding  in 
the  suit,  or  by  reason  of  any  judgment  or  process  thereon. 

This  bond  may  be  sued  on,  at  the  instance  and  to  the  use  of  the  party 
injured,  in  the  name  of  the  State. 

In  any  suit  thereon,  any  obligor  may  avail  himself  of  any  set-off  he  may 
have  against  the  party  to  whose  use  the  suit  is  brought  with  the  same 
effect  as  if  such  party  were  plaintiff,  and  if  such  set-off  shall  exceed  in 
amount  the  damages  proven  in  behalf  of  such  party,  judgment  shall  be 
rendered  against  him  in  favor  of  the  defendant  setting  up  the  set-off,  for 
the  amount  of  the  excess  and  costs. 

Under  an  attachment  the  officer  is  authorized  to  seize  as  attachable 
property  the  defendant's  account-books,  accounts,  notes,  bills  of  exchange, 
bond;;,  certificates  of  deposit,  and  other  evidences  of  debt,  as  well  as  his 
other  property,  real,  personal,  and  mixed ;  but  no  property  declared  by 
statute  to  be  exempt  from  execution  shall  be  attached,  except  in  the  cases 
of  a  non-resident  defendant,  or  of  a  defendant  who  is  about  to  move  out 
of  the  State  with  intent  to  change  his  domicile. 

All  persons  shall  be  summoned  as  garnishees  who  are  named  as  such 
in  the  writ ;  and  such  others  as  the  officers  shall  find  in  the  possession  of 
goods,  money,  or  effects  of  the  defendant  not  actually  seized  by  the  officer ; 
and  debtors  of  the  defendant;  and  such  persons  as  the  plaintiff  or  his  at- 
«^orney  shall  direct. 


APPENDIX.  565 

No  sheriff,  constable,  or  other  officer  charged  with  the  collection  of  mon- 
ey shall,  prior  to  the  return  day  of  an  execution,  or  other  process  upon 
which  the  same  may  be  made,  be  liable  to  be  summoned  as  garnishee ;  nor 
shall  any  county  collector,  or  municipal  corporation,  or  any  officer  thereof 
or  any  administrator,  or  executor  of  an  estate,  prior  to  an  order  of  distribu- 
tion, or  for  payment  of  legacies,  or.  allowing  a  demand  found  to  be  due  by 
his  estate,  be  liable  to  be  summoned  as  garnishee  ;  nor  shall  any  person  be 
charged  as  garnishee  on  account  of  wages  due  from  him  to  a  defendant  in 
his  employ ;  nor  shall  any  person  be  so  charged  by  reason  of  his  having 
drawn,  accepted,  made,  or  indorsed  any  promissory  note,  bill  of  exchange, 
draft,  or  other  security  in  its  nature  negotiable,  unless  it  be  shown  at  the 
hearing,  that  such  note,  bill,  draft,  or  other  security  was  the  property  of 
the  defendant  when  the  garnishee  was  summoned,  and  continued  so  to  be 
until  after  it  became  due. 

Notice  of  garnishment  shall  have  the  effect  of  attaching  all  personal 
property,  money,  rights,  credits,  bonds,  bills,  notes,  drafts,  checks,  or  other 
choses  in  action  of  the  defendant  in  the  garnishee's  possession  or  charge, 
or  under  his  control  at  the  time  of  the  service  of  the  garnishment,  or  which 
may  come  into  his  possession  or  charge,  or  under  his  control,  between  that 
time  and  the  time  of  filing  his  answer ;  but  he  shall  not  be  liable  to  a 
judgment  in  money  on  account  of  such  bonds,  bills,  notes,  drafts,  checks,  or 
other  choses  in  action,  unless  the  same  shall  have  been  converted  into 
money  since  the  garnishment,  or  he  fail,  in  such  time  as  the  court  may 
prescribe,  to  deliver  them  into  court,  or  to  the  sheriff  or  other  person  des- 
ignated by  the  court. 

The  court,  or  in  vacation  the  judge,  may,  in  a  proper  case,  on  the  ap- 
plication of  the  plaintiff,  appoint  a  receiver,  who  shall  take  an  oath  faith- 
fully to  discharge  his  duty,  and  shall  enter  into  bond  to  the  State  of  Mis- 
souri, in  such  sum  as  the  court  or  judge  may  direct,  and  with  security 
approved  by  the  court  or  judge  for  the  faithful  performance  of  his  duty  as 
receiver,  and  that  he  will  pay  over  all  money  and  account  for  all  property 
which  may  come  into  his  hands  in  virtue  of  his  appointment,  at  such  times 
and  in  such  manner  a-  the  court  may  direct.  This  bond  may  be  sued  on 
in  the  name  of  the  State,  at  the  instance  and  to  the  use  of  any  pai'ty 
injured. 

Where  notes,  bills,  books  of  account,  accounts,  or  other  evidences  of  debt 
are  attached,  they  shall  not  be  subject  to  be  retained  upon  the  execution  of 
a  delivery  bond  as  hereinbefore  provided,  but  shall  be  delivered  to  the  re- 
ceiver, who  shall  proceed  with  diligence   to  settle  and  collect  the   same. 

For  that  purpose  he  may  commence  and  maintain  actions  on  the  same  in 
his  own  name ;  but  in  such  actions  no  right  of  defence  shall  be  impaired. 

The  receiver  shall  forthwith  give  notice  of  his  appointment  to  the  per 
sons  indebted  to  the  defendant.     The  notice  shall  be  written  or  printed,  and 


566  APPENDIX. 

shall  be  served  on  each  debtor  by  copy  delivered  to  him  or  left  at  his  place 
of  residence  or  business;  or  if  he  reside  in  another  county,  by  copy 
deposited  in  the  post-office  and  addressed  to  him  at  his  place  of  residence  ; 
and  from  the  date  of  such  service,  and  knowledge  thereof,  every  such 
debtor  shall  stand  liable  and  shall  account  to  the  receiver  for  the  amount 
of  moneys  and  credits  of  the  defendant  jn  his  hands,  or  due  from  him  to 
the  defendant. 

The  receiver  shall,  when  required,  report  his  proceedings  to  the  court, 
and  shall  hold  all  moneys  collected  and  all  property  received  by  him  sub- 
ject to  the  order  of  the  court.  He  shall  receive  such  compensation  as  the 
court  may  allow. 

Until  a  receiver  is  appointed,  the  attaching  officer  shall  have  all  the 
powers  and  perform  all  the  duties  of  a  receiver  under  this  act,  and  may 
commence  and  maintain  actions  in  his  own  name,  as  such  officer,  on  debts 
or  evidences  of  debt  attached.  He  may  in  such  case  be  required  to  give 
security  other  than  his  official  bond  ;  but  if  not  so  required,  the  sureties 
in  his  official  bond  shall  be  held  liable  as  in  other  cases  of  his  official 
action. 

When  the  same  property  is  attached  in  several  actions  by  different  plain- 
tiffs against  the  same  defendant,  the  court  may  settle  and  determine  all 
controversies  in  relation  to  the  property,  and  the  priority,  validity,  good 
faith,  force,  and  effect  of  the  different  attachments  which  may  arise  be- 
tween any  of  the  plaintiffs ;  and  may  dissolve  any  attachment,  partially  or 
wholly,  or  postpone  it  to  another  ;  or  make  such  order  in  the  premises  as 
right  and  justice  may  require.  If  the  writs  issue  from  different  courts  of 
co-ordinate  jurisdiction,  such  controversies  shall  be  determined  by  that 
court  out  of  which  the  first  writ  of  attachment  was  issued,  in  order  whereto 
tlie  cause  originating  in  the  other  court  shall  be  transferred  to  it,  and  shall 
thenceforth  be  there  heard,  tried,  and  determined  in  all  its  parts  as  if  it 
had  been  instituted  therein.  If  any  such  controversy  arise  between  a 
plaintiff  in  an  action  instituted  in  a  court  of  general  jurisdiction,  and  a 
plaintiff  in  an  action  instituted  in  a  court  of  limited  jurisdiction,  the  matter 
shall  be  determined  by  the  former  court  to  which  the  action  commenced 
in  the  latter  shall  be  transferred.  And  when  the  defendant  has  been  no- 
tified by  pul)lication  and  does  not  appear,  any  plaintiff  in  the  circumstances 
contemplated  in  this  section  may  make  any  defence  to  any  previous  attach- 
ment, or  to  the  action,  which  the  defendant  might;  but  no  judgment  on' 
any  issue  made  in  such  manner  shall  be  binding  on  the  defendant  person- 
ally, or  bar  the  plaintiff  in  the  action  so  contested  by  an  opposing  plaintiff, 
from  again  suing  the  defendant  on  the  same  cause  of  action.^ 

1  1  Revised  Statutes  of  Missouri,  of  1855. 


APPENDLX.  567 


NEW    HAMPSHIRE. 

In  this  State  the  writ  of  attachment,  as  distinguished  from  that  form  of 
such  writ  known  as  "  foreign  attachment  "  or  "trustee  process,  "  issues  as 
a  matter  of  course,  upon  the  institution  of  any  personal  action.  It  is  de- 
clared in  the  law  to  be  an  original  process  in  the  courts,  and  commands 
the  officer  to  attach  the  goods  and  estate  of  the  defendant.  Under  it,  all 
property,  real  and  personal,  which  is  liable  to  be  taken  in  execution  ; 
shares  of  stock  in  any  corporation  ;  pews  and  seats  in  meeting-iiouses  or 
places  of  public  worship ;  and  the  franchise  of  any  corporation  authorized 
to  receive  tolls,  so  far  as  relates  to  the  rights  to  receive  tolls,  with  all  the 
privileges  and  immunities  belonging  thereto ;  may  be  attached ;  but  gar- 
nishees are  not  summoned. 

Property  so  attached  is  holden  until  the  expiration  of  thirty  days  from 
the  time  of  rendering  judgment  in  the  action  in  favor  of  the  plaintiff,  that 
execution  may  issue  thereon. 

All  personal  actions  may  be  commenced  by  the  process  of  foreign  at- 
tachment, or  trustee  process,  except  actions  of  replevin,  actions  on  the 
case  for  malicious  prosecution,  or  for  slander  or  libel,  and  actions  of  tres- 
pass for  assault  and  battery,  and  false  imprisonment. 

This  trustee  writ  is  an  attachment  and  summons,  and  is  served  upon 
the  defendant  and  the  trustees  (or  garnishees)  in  the  same  manner  as  writs 
of  summons. 

The  plaintiff  may  insert  the  names  of  as  many  persons  as  trustees  as 
he  may  deem  necessary,  at  any  time  before  the  process  is  served  on  the 
defendant,  but  not  after. 

A  trustee  may  be  required  to  answer,  in  writing,  and  under  oath,  in- 
terrogatories as  to  his  liability  as  trustee ;  and  every  person  summoned  as 
trustee,  and  having  in  his  possession  any  money,  goods,  chattels,  rights,  or 
credits  of  the  defendant,  at  the  time  of  the  service  of  the  writ  on  him,  or 
at  any  time  after  such  service  and  before  his  disclosure,  shall  be  adjudged  a 
trustee  therefor. 

Where  a  trustee  is  indebted  to  the  defendant,  judgment  is  rendered 
against  him  for  the  amount  of  the  debt,  if  necessary  to  satisfy  the  claim 
against  the  defendant;  but  if  the  trustee  have  goods  and  chattels  of  the  de- 
fendant, or  is  under  contract  to  deliver  specific  articles  to  him,  the  judg- 
ment is  against  him  for  such  goods,  chattels,  or  specific  articles  ;  and  if  he 
deliver  them  he  is  discharged ;  but  if  he  refuse  to  expose  them  so  that  the 
creditor  may  levy  his  execution  thereon,  the  court,  on  return  thereof  made 
by  any  officer,  grants  a  rule  upon  the  trustee  to  show  cause  why  execution 
should  not  issue  against  him  and  his  own  goods  and  estate ;  and  upon  such 
rule  being  duly  served,  and  no  sufficient  cause  shown  to  the  contrary,  judg- 

1  Revised  Statutes  of  New  Hampshire,  of  1842,  pp.  361,  367,  369. 


568  APPENDIX. 

ment  is  rendered  and  execution  issued  against  him  for  such  sum  as  the 
court  may  think  right  and  proper/ 

NEW     JERSEY. 

If  any  creditor  shall  make  oath  or  affirmation  before  any  judge  of  any 
of  the  courts  of  record  of  this  State,  or  justice  of  the  peace  of  any  county 
iu  the  same,  that  he  verily  believes  that  his  debtor  absconds  from  his  cred- 
itors, and  is  not,  to  his  knowledge  or  belief,  resident  in  the  State  at  the 
time,  the  clerk  of  the  supreme  court,  or  of  any  circuit  court,  or  court  of 
common  pleas,  shall  issue  a  writ  of  attachment,  commanding  the  sheriff  to 
attach  the  rights  and  credits,  moneys  and  effects,  goods  and  chattels,  lands 
and  tenements  of  such  debtor,  wheresoever  they  may  be  found. 

If  the  creditor  be  absent  or  reside  out  of  the  State,  the  oath  may  be 
made  by  his  agent  or  attorney. 

The  officer  in  executing  the  writ  is  authorized  and  required  (having  first 
made  demand  and  being  refused)  to  break  open  any  house,  chamber,  room, 
shop,  door,  chest,  trunk,  or  other  place  or  thing,  where  he  shall  be  in- 
formed, or  have  reason  to  believe,  any  money,  goods,  books  of  account, 
bonds,  bills,  notes,  papers,  or  writings  of  the  defendant  may  be  deposited, 
secreted,  had,  or  found. 

On  the  return  of  the  writ  the  clerk  gives  notice  for  two  months  suc- 
cessively, in  some  newspaper  circulating  in  the  State,  of  the  attachment. 

The  court,  on  the  return  of  the  writ,  appoints  three  auditors,  to  audit 
and  adjust  the  demands  of  the  plaintiff,  and  of  so  many  of  the  defendant's 
creditors  as  shall  have  applied  to  the  court,  or  to  the  auditors  before  they 
shall  have  made  their  report,  for  that  purpose,  and  to  make  report  in 
writing. 

The  auditors,  or  any  two  of  them,  may  issue  their  warrant  under  their 
hands  and  seals,  commanding  the  sheriff  of  the  county,  or  any  constable,  to 
bring  before  them  at  a  certain  time  and  place  therein  specified,  the  wife  of 
the  defendant,  or  any  other  person,  and  examine  them,  by  word  of  mouth 
or  interrogatories  in  writing,  touching  all  matters  relating  to  the  trade, 
dealings,  moneys,  debts,  effects,  rights,  credits,  lands,  tenements,  property, 
and  estate  of  the  defendant,  and  his  secret  grants,  or  fraudulent  transfer  or 
conveyance  of  the  same  ;  and  they  may  also  issue  their  warrant  command- 
ing the  sheriff  or  constable  (having  first  made  demand  and  been  refused) 
to  break  open  any  place  or  thing  where  they  shall  have  reason  to  believe 
any  moneys,  goods,  chattels,  books  of  account,  bonds,  bills,  notes,  papers, 
or  writings  of  the  defendant,  may  be  deposited,  secreted,  had,  or  found,  and 
to  seize  and  inventory  the  same,  and  make  report  thereof  to  the  court  at 
tlie  next  term. 

1  Revised  Statutes  of  New  Hampshire,  of  1842,  pp.  417  -423. 


APPENDIX.  569 

The  auditors  may  also  sue  before  justices  of  the  peace  for  demands  not 
exceeding  one  hundred  dollars,  due  the  defendant. 

They  are  required  to  sell  the  property  of  the  defendant,  real  and  per- 
sonal ;  after  which  they  must  give  public  notice  in  newspapers,  requiring 
a  meeting  of  the  plaintiff,  and  creditors  who  may  have  applied,  at  a  certain 
time  and  place ;  at  which  meeting,  or  other  subsequent  one,  the  auditors 
shall  distribute  among  the  plaintiff  and  creditors  equally,  and  in  a  ratable 
proportion,  according  to  the  amount  of  their  respective  debts,  as  ascer 
tained  by  the  auditors'  report,  and  the  judgment  of  the  court  thereon,  all 
the  moneys  arising  from  tlie  sale  of  the  goods  and  chattels,  lands  and  tene 
ments,  first  deducting  legal  costs  and  charges ;  and  if  the  moneys  be  not 
sufficient  to  satisfy  the  debts,  they  shall  assign  to  the  plaintiff  and  creditors, 
the  choses  in  action,  rights  and  credits  of  the  defendant,  in  proportion  to 
their  respective  debts ;  which  assignment  shall  vest  the  property  and  inter- 
est of  the  defendant  in  the  assignee,  so  as  he  may  sue  for  and  recover  the 
same  in  his  own  name  and  to  his  own  use. 

An  attachment  may  also  be  obtained  against  non-resident  debtors,  and 
foreign  corporations. 

It  issues  against  the  heirs  and  devisees  of  a  deceased  debtor,  in  all 
cases  in  which  it  might  lawfully  have  been  issued  against  the  debtor  in 
his  lifetime. 

Legacies  and  distributive  shares  of  estates  in  the  hands  of  executors  or 
administrators,  may  be  attached. 

Garnishees  may  be  summoned,  but  the  mode  of  proceeding  against 
them,  except  where  they  are  about  to  abscond,  is  not  pointed  out  in  the 
statute.^ 

NEW     YORK. 

In  an  action  for  the  recovery  of  money  against  a  corporation,  created  by 
or  under  the  laws  of  any  other  State,  government,  or  country,  or  against  a 
defendant  who  is  not  a  resident  of  this  State,  or  against  a  defendant  who 
has  absconded  or  concealed  himself  as  hereinafter  mentioned,  the  plaintiff, 
at  the  time  of  issuing  the  summons,  or  at  any  time  afterwards,  may  have 
the  property  of  such  defendant  attached  in  the  manner  hereinafter  pre- 
scribed, as  a  satisfaction  of  such  judgment  as  the  plaintiff  may  recover. 

A  warrant  of  attachment  must  be  obtained  from  a  judge  of  the  court  in 
which  the  action  is  brought,  or  from  a  county  judge. 

The  warrant  may  be  issued  whenever  it  shall  appear  by  affidavit  that  a 
cause  of  action  exists  against  such  defendant,  specifying  the  amount  of  the 
claim  and  the  grounds  thereof,  and  that  the  defendant  is  either  a  foreign 
corporation,  or  not  a  resident  of  this  State,  or  has  departed  therefrom  with 
intent  to  defraud  his  creditors,  or  to  avoid  the  service  of  a  summons,  or 
keeps  himself  concealed  therein  with  the  like  intent. 

1  Revised  Statutes  of  New  Jersey,  of  1 846,  pp.  48  -  63. 


570  APPENDIX. 

Before  issuing  the  warrant,  the  judge  shall  require  a  written  undertak- 
ing on  the  part  of  the  plaintiff,  with  sufficient  surety,  to  the  effect  that  if 
the  defendant  recover  judgment,  the  plaintiff  will  pay  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the  undertak- 
ing, which  shall  be  at  least  two  hundred  and  fifty  dollars. 

The  rights  and  shares  which  a  defendant  may  have  in  the  stock  of  any 
association  or  corporation,  together  with  the  interest  and  profits  thereon, 
and  all  other  property  in  this  State  of  such  defendant,  shall  be  liable  to  be 
attached ;  and  garnishees  may  be  summoned.^ 

NORTH     CAROLINA. 

Upon  complaint  being  made  on. oath  to  any  judge  of  the  supreme  or 
superior  courts,  or  to  any  justice  of  the  county  court,  or  clerk  of  the  county 
or  superior  court,  by  any  person,  his  attorney  or  agent,  that  any  person  in- 
debted to  him,  or  who  hath  endamaged  him,  as  hereinafter  mentioned,  hath 
removed,  or  is  privately  removing  himself  out  of  the  county,  or  absents 
himself  from  the  county  or  State,  or  conceals  himself,  so  that  the  ordinary 
process  of  law  cannot  be  served  on  him  ;  and  if  the  plaintiff,  his  attorney  or 
ao-ent,  further  swears  to  the  amount  of  his  debt  or  demand,  to  the  best  of 
his  knowledge  or  belief,  such  judge,  justice,  or  clerk  shall  grant  an  attach- 
ment against  the  estate  of  such  debtor,  wherever  the  same  may  be  found, 
or  in  the  hands  of  any  person  indebted  to,  or  having  any  of  the  effects  of 
the  defendant,  or  so  much  thereof  as  shall  be  of  value  sufficient  to  satisfy 
the  debt  or  demand,  and  costs  of  such  complaint ;  which  attachment  shall 
be  returned  to  any  court  where  the  suit  is  cognizable,  and  shall  be  deemed 
the  leading  process,  and  the  same  proceedings  shall  be  had  thereon  as  on 
judicial  attachments. 

An  attacliment  may  be  issued  in  favor  of  a  resident  of  this  State  against 
a  non-resident. 

The  officer,  before  granting  an  attachment,  shall  take  bond  and  security 
of  the  party  for  whom  the  same  shall  be  issued,  his  attorney  or  agent,  pay- 
able to  the  defendant,  in  double  the  sum  for  which  the  complaint  is  made, 
conditioned  for  satisfying  all  costs  which  shall  be  awarded  to  the  defendant, 
in  case  the  plaintiff  shall  be  cast  in  the  suit,  and.  also  all  damages  which 
.-hall  be  recovered  against  the  plaintiff  in  any  suit  which  may  be  brought 
against  him  for  wrongfully  suing  out  the  attachment. 

The  bond  and  affidavit  shall  be  returned  by  the  officer  to  the  court  to 
which  the  attachment  is  returnable;  and  every  attachment  issued  without 
bond  and  alRdavit  taken  and  returned,  as  aforesaid,  shall  be  abated  on  the 
plea  of  the  defendant. 

If  any  one  shall  do  an  injury  to  the  proper  person  or  property  of  another, 
1  Code  of  Procedure,  Chapter  IV.  Title  7,  §§  227,  228,  229,  230,  234,  235. 


APPENDIX.  571 

and  shall  within  three  months  thereafter  abscond  beyond  the  limits  of  the 
State,  or  shall,  within  that  time,  conceal  himself  within  the  State,  so  that 
the  ordinary  process  of  law  cannot  be  served  on  him,  his  estate  may  be 
attached  to  answer  the  damages  for  such  injury,  under  the  same  rules  as 
are  prescribed  for  original  or  judicial  attachments,  provided  the  attachment 
be  issued  within  three  months  after  the  injury  done. 

A  judicial  attachment  issues,  when,  by  the  answer  of  a  garnishee,  it  ap- 
pears to  the  court  that  there  is  any  of  the  defendant's  estate  in  the  hands 
of  any  person  who  has  not  been  summoned.  Under  such  an  attachment 
the  person  having  such  estate  in  his  hands  may  be  summoned  as  garnishee. 

No  judicial  process  shall  be  issued  against  the  estate  of  any  person  re- 
siding without  the  limits  of  the  State,  unless  the  same  be  grounded  on  an 
original  attachment,  or  unless  the  leading  process  in  the  suit  has  been  exe- 
cuted on  the  person  of  the  defendant  when  within  this  State. 

Under  an  attachment  garnishees  may  be  summoned,  who  are  required  to 
answer  under  oath.^ 

OHIO. 

The  plaintiff  in  a  civil  action  for  the  recovery  of  money,  may,  at  or  after 
the  commencement  thereof,  have  an  attachment  against  the  property  of  the 
defendant,  upon  the  following  grounds  :  — 

1.  When  the  defendant,  or  one  of  several  defendants,  is  a  foreign  cor- 
poration or  a  non-resident  of  this  State  ;  or, 

2.  Has  ab>conded  with  the  intent  to  defraud  his  creditors  ;  or, 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  sum- 
mons ;  or, 

4.  So  conceals  himself,  that  a  summons  cannot  be  served  upon  him  ; 
or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  juris- 
diction of  the  court,  with  the  intent  to  defraud  his  creditors  ;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for 
the  purpose  of  placing  it  beyond  the  reach  of  his  creditors  ;  or, 

7.  Has  property,  or  rights  in  action,  which  he  conceals  ;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of,  his 
property,  or  a  part  thereof,  with  the  intent  to  defraud  his  creditors ;  or, 

9.  Fraudulently  contracted  the  debt,  or  incurred  the  obligation  for 
which  suit  is  about  to  be,  or  has  been,  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defend- 
ant is  a  foreign  corporation  or  a  non-resident  of  this  State,  for  any  other 
claim  than  a  debt  or  demand  arising  upon  contract,  judgment,  or  decree. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which  the 
action  is  brought,  when  there  is  filed  in  his  oflBce  an  affidavit  of  the  plain- 
tiff, his  agent,  or  attorney,  showing, 

1  Revised  Code  of  North  Carolina,  of  1856,  pp.  92-96 


672  APPENDIX. 

1.  The  nature  of  the  plaintiflTs  claim; 

2.  That  it  is  just ; 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover; 
and, 

4.  The  existence  of  some  one  of  the  grounds  for  an  attachment,  above 
enumerated. 

When  the  ground  of  the  attachment  is,  that  the  defendant  is  a  foreign 
corporation,  or  a  non-resident  of  this  State,  the  order  of  attachment  may  be 
issued  without  an  undertaking.  In  all  other  cases,  it  shall  not  be  issued 
until  there  has  been  executed  in  the  clerk's  office,  by  one  or  more  sufficient 
sureties  of  the  plaintiff,  to  be  approved  by  the  clerk,  an  undertaking,  not 
exceeding  double  the  amount  of  the  plaintiffs  claim,  to  the  effect  that  the 
plaintiff  shall  pay  the  defendant  all  damages,  which  he  may  sustain  by  rea- 
son of  the  attachment,  if  the  order  be  wrongfully  obtained. 

Under  the  order  of  attachment  may  be  attached  lands,  tenements,  goods, 
chattels,  stocks,  or  interest  in  stock;?,  rights,  credits,  moneys,  and  effects  of 
the  defendant,  not  exempt  by  law  from  the  payment  of  plaintiffs 
claim. 

When  there  are  several  orders  of  attachment  against  the  same  defendant, 
they  shall  be  executed  in  the  order  in  which  they  were  received  by  the 
sheriff. 

A  receiver  may  be  appointed  by  the  court  or  any  judge  thereof  during 
vacation,  who  shall  take  possession  of  all  notes,  due-bills,  books  of  account, 
accounts,  and  all  other  evidences  of  debt,  that  have  been  taken  by  the 
officer,  as  the  property  of  the  defendant,  and  shall  proceed  to  settle  and 
collect  the  same.  For  that  purpose,  he  may  commence  and  maintain  ac- 
tions in  his  own  name  as  such  receiver ;  but  in  such  actions  no  right  of 
defence  shall  be  impaired  or  affected. 

The  receiver  is  to  give  notice,  forthwith,  of  his  appointment  to  the  per- 
sons indebted  to  the  defendant ;  which  notice  shall  be  served  by  copy  ;  and 
from  the  date  of  such  service,  the  debtors  shall  stand  liable  to  the  plaintiff 
in  attachment  for  the  amount  of  moneys  and  credits  in  their  hands  or  due 
from  them  to  the  defendant,  and  shall  account  therefor  to  the  receiver. 

An  attachment  may  be  obtained  on  a  claim  before  it  is  due, — 

1.  Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his 
property,  witli  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to 
binder  or  delay  them  in  the  collection  of  their  debts  ;  or, 

2.  Is  about  to  make  such  sale,  conveyance,  or  disposition  of  his  property, 
with  such  fraudulent  intent ;  or, 

3.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  with  the 
intent,  or  to  the  effect,  of  cheating  or  defrauding  his  creditors,  or  of  hinder- 
ing or  delaying  them  in  the  collection  of  their  debts. 

Garnishees  may  be  summoned,  who  shall  appear  and  answer,  under  oath, 


APPENDIX.  573 

all  questions  put  to  them,  touching  the  property  of  every  description  and 
credits  of  the  defendant  in  their  possession  or  under  their  control.^ 

OREGON. 

In  an  action  for  the  recovery  of  money,  the  plaintiff,  at  the  time  of  issu- 
ing the  summons,  or  at  any  time  afterwards,  may  have  the  property  of  the 
defendant  attached,  as  a  security  for  the  satisfaction  of  such  judgment  as  he 
may  recover. 

An  attachment  is  issued  by  the  clerk  of  the  court  in  which  the  action  is 
brought,  when  the  plaintiff,  his  agent  or  attorney,  makes  affidavit  that  a 
cause  of  action  exists  against  the  defendant,  specifying  the  amount  of  his 
claim,  over  and  above  all  legal  set-offs,  and  the  nature  thereof,  and  that,  as 
the  affiant  verily  believes,  the  defendant  is  either  — 

1.  A  foreign  corporation  ;  or, 

2.  That  he  is  not  a  i-esident  of  this  Territory,  or  has  departed  therefrom 
with  the  intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the  service  of 
a  summons  ;  or, 

3.  That  he  has  assigned,  secreted,  or  disposed  of,  or  is  about  to  assign, 
secrete,  or  dispose  of,  his  property,  or  any  part  thereof,  with  the  intent  to 
delay  or  defraud  his  creditors  ;  or, 

4.  That  the  debt  was  fraudulently  contracted. 

Before  executing  an  attachment  the  officer  to  whom  it  is  directed  shall 
require  a  Avritten  undertaking  on  the  part  of  the  plaintiff,  with  one  or  more 
sureties,  in  a  sum  not  less  than  two  hundred  dollars,  nor  exceeding  the 
amount  claimed  by  the  plaintiff,  to  the  effect  that  if  the  defendant  recover 
judgment,  the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  defend- 
ant, and  all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  sum  specified  iri  the  undertaking. 

Under  the  writ  the  sheriff  attaches  real  and  personal  property,  and  shares 
of  stock  in  corporations,  and  summons  garnishees.^ 

PENNSYLVANIA. 

In  this  State  the  writ  of  domestic  attachment  issues  against  any  debtor, 
being  an  inhabitant  of  the  State,  if  such  debtor  shall  have  absconded  from 
the  place  of  his  usual  abode  within  the  same,  or  shall  have  remained  absent 
from  the  State,  or  shall  have  confined  himself  in  his  own  house,  or  concealed 
himself  elsewhere,  with  design,  in  either  case,  to  defraud  his  creditors.  And 
the  like  proceedings  may  be  had  if  a  debtor,  not  having  become  an  inhabit- 
ant of  the  State,  shall  confine  or  conceal  himself  within  the  county,  with  in- 
tent to  avoid  the  service  of  a  process,  and  to  defraud  his  creditors, 

1  Ohio  Code  of  Procedure,  of  1853,  Ch.  III. 

'■^  Revised  Statutes  of  Oregon,  of  1855,  pp.  102-108. 


574  APPENDIX. 

This  writ  does  not  issue,  except  upon  oath  or  affirmation,  previously 
made  by  a  creditor,  or  by  some  person  in  his  behalf,  of  the  truth  of  his 
debt,  and  of  the  facts  upon  which  the  attachment  shall  be  founded.  It 
commands  the  officer  to  attach  the  goods  and  chattels,  lands  and  tenements 
of  the  defendant,  and  to  summon  garnishees. 

Upon  tlie  writ  being  executed  the  court  appoints  three  trustees,  to  whom 
the  offict^r  delivers  the  personal  property  attached  ;  and  the  trustees  there- 
upon publish  notice  in  a  newspaper,  requiring  all  persons  indebted  to  the 
defendant,  or  holding  property  belonging  to  him,  to  pay  and  deliver  the  same 
to  them,  and  also  desiring  all  creditors  of  the  defendant  to  present  their  re- 
spective accounts  or  demands. 

All  the  estate  of  the  defendant  attached  or  afterwards  discovered  by  the 
trustees  vests  in  the  trustees,  and  they  may  sue  for  and  recover  the  same  in 
their  own  names.  They  are  authorized  to  summon  all  persons  residing  in 
the  county,  supposed  to  be  indebted  to  the  defendant,  and  examine  thera  on 
oath,  as  they  shall  think  fit,  touching  the  real  or  personal  estate  of  the  de- 
fendant, and  such  other  things  as  may  tend  to  disclose  their  estates,  or  their 
secret  grants ;  or  alienation  of  their  effiicts.  If  such  persons  reside  in  an- 
other county  the  trustees  may  send  interrogatories  in  writing  and  examine 
them  to  the  same  effect. 

The  trustees  may  issue  warrants  commanding  houses,  chambers,  shops, 
stores,  and  warehouses  of  the  defendant  to  be  broken  open,  and  any  trunks 
or  chests  of  the  defendant,  in  which  his  goods  or  effects,  books  of  account, 
or  papers  relating  to  his  estate,  shall  be,  or  shall  be  reputed  to  be,  to  be 
seized  for  the  benefit  of  his  creditors. 

They  are  empowered  to  recover  any  property  fraudulently  disposed  of 
by  the  defendant,  and  they  may  redeem  mortgaged  property. 

They  are  authorized  to  sell  the  estate,  real  and  personal,  of  the  defend- 
ant which  has  become  vested  in  them,  and  to  assign  any  or  all  of  the  debts 
due  or  to  become  due  to  him,  and  the  purchaser  or  grantee  may  sue  for 
and  recover  such  property  or  debts,  in  his  own  name,  and  to  his  own 
use. 

The  trustees  then  fix  a  day,  and  proceed  to  hear  the  proofs  of  all  cred 
itors  of  the  defendant  of  their  respective  claims,  and  having  stated  their  ac- 
counts, and  ascertained  the  proportionate  sum  payable  to  each  creditor,  they 
file  their  report  of  the  same  in  the  office  of  the  prothonotary  ;  and  if  no  ex- 
ceptions to  the  report  be  filed  within  a  limited  time,  they  proceed  to  distrib- 
ute the  money,  ratably  and  without  preference  among  all  the  creditors  who 
have  proved  their  claims. 

The  death  of  the  defendant  after  the  issuing  of  an  attachment  does  not 
abate  or  otherwise  affect  the  proceedings  thereon. 

No  second  or  other  attachment  can  be  issued  against,  or  served  upon  the 
estate  or  effects  of  the  same  defendant,  except  those  issued  intu  apother 


APPENDLX.  O  I  O 

county,  unless  the  fir-t  attachment  be  not  executed,  or  be  dissolved  by  the 
court.^ 

The  writ  of  foreign  attachment  lies  against  a  foreign  corporation,  and 
af^ainst  any  person  not  residing  within  the  State,  and  not  being  within  the 
county  at  the  time  the  writ  issues.  Under  it  real  and  personal  estate  may 
be  attached,  and  garnishees  summoned,  who  are  required  to  answer,  under 
oath,  such  interrogatories  as  the  plaintiff  may  propound,  touching  the  estate 
and  effects  of  the  defendant  in  their  hands,  or  due  or  owing  from  them  to 
the  defendant. 

A  writ  of  attachment  also  issues  against  a  person  under  sentence  of  im- 
prisonment, upon  conviction  of  crime. 

The  writ  of  foreign  attachment  seems  to  issue  as  a  matter  of  right,  with- 
out the  necessity  of  affidavit,  and  tlie  benefit  of  it  enures  to  the  attaching 
creditor,  and  not  to  all  his  creditors,  as  in  the  case  of  the  domestic  attach- 
ment.^ 

RHODE     ISLAND. 

Whenever  a  writ  of  arrest,  or  other  writ  authorizing  an  arrest,  shall  be 
delivered  to  an  officer  for  service,  he  shall  use  his  best  endeavors  to  arrest 
the  body  of  the  defendant ;  but  if  he  cannot  find  the  body  of  the  defendant 
he  shall  attach  his  goods  and  chattels,  to  the  value  commanded  in  the  writ ; 
and  when  any  attachment  is  made  as  aforesaid,  the  same  shall  be  sufficient 
to  bring  the  cause  to  trial.^ 

"When  any  person  shall  reside  or  be  absent  out  of  this  State,  or  shall  con- 
ceal himself  therein  so  that  his  body  cannot  be  arrested,  and  when  any  in- 
corporated company  established  out  of  this  State  shall  be  indebted  or  liable 
to  any  person,  then  the  personal  estate  of  such  absent  or  concealed  person 
or  foreign  corporation,  lodged  or  lying  in  the  hands  of  thefr  attoi-ney,  agent, 
factor,  trustee,  or  debtor,  shall  be  liable  to  be  attached,  the  plaintiff  giving 
special  order  therefor,  on  the  back  of  the  writ,  to  answer  any  just  debt  or 
demand  ;  and  the  serving  of  any  person  or  body  corporate,  or  any  member 
of  any  firm  or  copartnership  who  have  such  personal  estate  in  their  hands, 
with  a  copy  of  a  writ  taken  out  against  such  absent  or  concealed  person,  or 
foreign  corporation,  shall  be  a  good  service  of  said  writ.* 

The  garnishee  is  to  render  an  account  on  oath  of  what  estate  he  had  of 
the  defendant  at  the  time  of  the  service  of  the  writ. 

1  Dunlop's  Laws  of  Pennsylvania,  2d  Ed.,  pp.  757-763. 

2  Dunlop's  Laws  of  Pennsylvania,  pp.  740-746. 

3  Public  Laws  of  Rhode  Island,  113. 
*  Public  Laws  of  Rhode  Island,  118. 


576  APPENDIX. 

SOUTH    CAROLINA.^ 

The  creditor,  wherever  residing,  is  entitled  to  sue  out  a  writ  of  foreign 
attachment  when  the  debtor  resides  or  is  without  the  limits  of  the  State,^  or 
absconds  or  conceals  himself  so  that  process  cannot  be  served  upon  him 
for  the  space  of  three  months.^  But  partnership  property  cannot  be  attached 
for  partnership  debts  when  one  of  the  copartners  is  within  the  State,  or 
when  the  resident  copartner  before  leaving  the  State  publishes  a  notice  of 
his  intention  to  leave  and  his  readiness  to  answer  any  suits.*  Nor  can  the 
property  of  an  individual  be  attached,  where  notice  is  given  in  like  man- 
ner. 

Under  the  writ,  moneys,  goods,  chattels,  debts,  and  books  of  account,^ 
land,  leasehold  estates,  and  chattels  real,^  may  be  attached  in  the  hands  of 
the  garnishee,  and  the  garnishee  required  to  appear  in  court  and  show 
cause  why  the  attached  effects  should  not  be  adjudged  to  belong  to  the  ab- 
sent debtor. 

The  writ  issues  of  common  right  upon  the  creditor,  or  his  agent  giving 
bond,  with  sureties  approved  by  the  clerk,  in  double  the  amount  for  which 
the  attachment  issues,  conditioned  to  answer  to  defendant,  the  absent  debtor, 
for  all  illegal  conduct  in  obtaining  or  prosecuting  the  attachment.'^ 

On  service  of  the  writ  the  garnishee  must  make  a  return  under  oath 
to  the  next  court  thereafter,  setting  forth  the  property,  real  or  personal, 
in  "  his  possession,  power,  custody,  or  control,"  belonging  to  the  absent 
debtor.^ 

If  the  garnishee  claim  the  attached  effects  as  creditor  in  possession,  he 
should  set  forth  in  his  return  specifically  the  effects  attached,  and  also  the 
amount  and  nature  of  the  indebtedness  of  the  absent  debtor  to  him  ;  and  if 
the  effects  attaclied  were  obtained  bond  fide  and  legally  by  the  garnishee, 
he  shall  be  allowed  his  debt,  he  filing  his  declaration  and  proceeding  in 
every  respect  as  if  he  were  plaintiff  in  attachment.^ 

If  plaintiff  is  not  satisfied  of  the  correctness  of  garnishee's  return,  he  may 
contest  it  by  filing  suggestions  to  be  tried  by  a  jury,  and  if  the  garnishee  or 
any  other  person  claim  property  in  the  effects  attached,  the  truth  shall  be 
ascertained  by  a  feigned  issue  in  which  the  garnishee  or  party  claiming  shall 
be  actor.^** 

Wliere  tiie  garnisliee  is  in  possession  of  property,  known  or  supposed  to 

1  For  tliis  statement  of  the  provisions  of  the  Laws  of  South  Carolina  in  relation  to 
Attachment  I  am  under  obligation  to  James  Conner,  Esq  ,  of  Charleston,  Author  of 
"  Conner's  Digest "  of  South  Carolina  Rcporta,  and  District  Attorney  of  the  United 
States  for  South  Carolina. 

2  Act  of  1744,  3  Statutes,  617.  '  Act  of  18.39,  11  Statutes,  76. 

3  Act  of  17.51,  3  Statutes,  731.  ^  ^ct  of  1844,  11  Statutes,  290. 
*  Act  of  1744,  3  Statutes,  620.  »  Act  of  1744,  3  Statutes,  619. 

5  Act  of  1744,  3  Statutes,  617.  i^  Act  of  1744,  3  Statutes,  618. 

°  Act  of  1783,  4  Statutes,  544. 


APPENDIX.  577 

belong  to  the  absent  debtor,  he  may  be  compelled,  on  service  of  the  writ,  to 
deliver  it  to  the  sheriff,  or  claiming  it  under  oath  as  creditor  in  possession, 
to  give  bond  for  its  forthcoming.^ 

If  the  o-arnishee  fail  to  make  a  return  as  required,  judgment  shall  be 
given  against  him,  and  execution  levied  on  his  proper  goods  for  satisfaction 
of  the  debt  attached  for,  the  same  being  legally  proved.^ 

Upon  the  return  to  the  writ  either  by  the  sheriff  or  garnishee,  assignees 
are  appointed  by  the  court  to  take  possession  of  the  attached  property,  to 
sell  the  same  if  of  a  perishable  nature,  and  to  sue,  in  the  name  of  the  absent 
debtor,  for  moneys  due  him  on  the  books  or  accounts  attached,  the  assignees 
giving  bond  for  faithful  performance  of  their  duties.^ 

The  declaration  should  be  filed  within  two  months  after  the  return  of 
the  writ,  the  plaintiff  making  affidavit  of  the  sum  due,  and  that  no  part  of 
the  same  is  paid,  and  that  he  is  in  no  wise  indebted  to  the  absent  debtor. 
If  there  have  been  mutual  dealings  between  debtor  and  creditor,  a  stated 
account  showing  the  balance  due  should  be  sworn  to  and  filed  with  the  dec- 
laration.* 

The  absent  debtor  has  a  year  and  a  day  within  which  to  appear  and 
plead  to  the  declaration.  If  he  fail  so  to  do  within  that  time,  judgment 
shall  be  entered  against  him,  but  the  effect  and  operation  of  such  judgment 
is  limited  to  the  property  attached.* 

If  the  absent  debtor  appear  within  the  year  and  day  and  puts  in  special 
bail,  the  attachment  is  dissolved,  and  the  proceeding  becomes  then  strictly 
in  personam. 

K  the  absent  debtor  appear  in  person  or  by  attorney,  without  putting 
in  special  bail  and  judgment  is  entered  up  against  him,  the  execution  issu- 
ing on  such  judgment  may  be  levied  on  the  general  estate  of  the  defendant 
as  well  as  on  the  attached  effects.* 

TE  NNE  S  S  E  E . 

"Where  a  debtor  has  removed  or  is  removing  himself  out  of  the  county 
privately,  or  so  absconds  or  conceals  himself  that  the  ordinary  process  of 
law  cannot  be  served  on  him  ;  or  is  removing  or  about  to  remove  himself 
or  his  property  beyond  the  limits  of  the  State  ;  or  shall  be  absconding 
or  concealing  himself  or  his  property  or  effects ;  an  attachment  may  be 
obtained. 

In  order  to  obtain  an  attachment,  complaint  must  be  made  on  oath  by 
the  creditor,  his  attorney,  agent,  or  factor,  setting  forth  that  the  debtor  is 

1  Act  of  1844,  11  Statutes,  290. 

2  Act  of  1744,  3  Statutes,  618,  and  1844,  11  Statutes,  290. 

3  Act  of  1844,  11  Statutes,  290. 
*  Act  of  1744,  3  Statutes,  619. 

5  Act  of  1843,  11  Statutes,  256. 

6  Act  of  1843,  11  Staftttes,  256. 

37 


578  APPENDIX. 

doing  some  one  of  the  acts  stated  above ;  and  a  bond  must  b(;  given  by  the 
plaintiff,  his  attorney,  agent,  or  factor,  payable  to  the  defendant,  in  double 
the  sum  for  which  the  complaint  is  made,  conditioned  for  satisfying  all  costs 
which  shall  be  awarded  to  the  defendant  in  case  the  plaintiff  shall  be  cast 
in  the  suit,  and  also  all  damages  which  shall  be  recovered  against  the  plain- 
tiff in  any  suit  or  suits  which  may  be  brought  against  him  for  wrongfully 
suing  out  the  attachment. 

The  writ  commands  the  attachment  of  the  estate  of  the  debtor  wherever 
it  may  be  found,  or  in  the  hands  of  any  persons  indebted  to,  or  having  any 
of  the  effects  of,  the  defendant ;  and  under  it  garnishees  are  summoned, 
who  are  required  to  answer  on  oath  as  to  their  indebtedness  to  the  defend- 
ant, and  what  effects  they  have  and  had  of  the  defendant  in  their  hands  at 
the  time  of  serving  the  writ,  and  what  effects  or  debts  of  the  defendant 
there  are  in  the  hands  of  any  other,  and  what,  person,  to  their  knowledge 
or  belief^ 

In  the  case  of  non-resident  debtors,  having  any  real  or  personal  prop- 
erty or  choses  in  action  within  the  State,  it  is  required,  in  order  to  obtain 
an  attachment,  to  file  a  bill  in  chancery,  and  make  affidavit  and  give  bond 
as  in  the  cases  above  mentioned.^ 

A  judicial  attachment  issues  when  the  sheriff  returns  "  that  the  defend- 
ant is  not  found."  ^ 

TEXAS. 

Whenever  a  writ  of  summons  issues  from  any  court  of  this  State,  in  any 
civil  suit,  and  the  officer  returns  that  the  defendant  is  not  to  be  found  in 
his  county,  the  plaintiff  may  sue  out  a  writ  of  attachment,  returnable  in  the 
same  manner  as  original  writs  ;  and  if  the  officer  shall  return  any  property 
by  him  attached,  and  the  defendant  shall  fail  to  appear  and  plead  within 
the  time  limited  by  the  law  regulating  pleadings,  the  plaintiff  shall  be  en- 
titled to  judgment  as  in  ordinary  suits ;  and  the  property  attached,  if  not 
replevied,  or  released  by  special  bail,  shall  remain  in  the  custody  of  the 
officer,  until  final  judgment. 

Original  attachments  are  issued,  upon  the  party  applying  for  the  same, 
his  agent  or  attorney,  making  an  affidavit  in  writing,  stating  that  the  de- 
fendant is  justly  indebted  to  the  plaintiff,  and  the  amount  of  the  demand ; 
and  that  the  defendant  is  not  a  resident  of  the  State ;  or  that  he  is  about  to 
remove  out  of  the  State  ;  or  that  he  secretes  himself  so  that  the  ordinary 
process  of  law  cannot  be  served  on  him  ;  or  that  he  is  about  to  remove  his 
property  beyond  this  State,  and  that  thereby  the  plaintiff  will  probably  lose 
the  debt ;  and  he  shall  also  swear  that  the  attachment  is  not  sued  out  for 
the  purpose  of  injuring  the  defendant. 

1  Canithers  &  Nicholson's  Digest,  101,  102,  103  •  and  Nicholson's  Supplement,  12. 

■•2  Caruthcrs  &  Nicholson's  Digest,  106. 

8  Caruthers  &  Nicholson's  Digest,  108.  ' 


APPENDIX.  579 

At  the  time  of  making  such  affidavit,  the  plaintiff,  his  agent  or  attorney, 
shall  o-ive  bond,  with  two  or  more  good  and  sufficient  sureties,  payable  to 
the  defendant,  in  at  least  double  the  amount  sworn  to  be  due,  conditioned 
that  the  plaintiff  will  prosecute  his  suit  to  effect,  and  pay  such  damages  as 
shall  be  adjudged  against  him  for  wrongfully  suing  out  such  attachment. 

The  writ  of  attachment  goes  against  the  property  of  the  debtor,  wherever 
the  same  may  be  found. 

It  may  issue  in  all  cases,  although  the  debt  or  demand  be  not  due  ;  but 
no  judgment  shall  be  rendered  until  the  demand  becomes  due. 

Where  an  attachment,  either  original  or  judicial,  is  issued,  the  plaintiff 
may  have  at  the  same  time  a  writ  of  garnishment,  against  any  person  sup- 
posed to  be  indebted  to,  or  to  have  any  of  the  effects  of,  the  defendant. 
Garnishees  summoned  under  this  writ  must  answer  on  oath  as  to  their 
indebtedness,  or  that  of  others,  to  the  defendant,  and  as  to  the  effects  of 
the  defendant  they  have  in  their  possession,  and  had  at  the  time  of  the  gar- 
nishment.^ 

VERMONT. 

The  ordinary  mode  of  process,  in  civil  causes,  is  by  writ  of  summons  or 
attachment. 

Writs  of  attachment  may  issue  against  the  goods,  chattels,  or  estate  of 
the  defendant,  and  for  want  thereof  against  his  body. 

No  writ  shall  issue  unless  there  be  sufficient  security  given  to  the  de- 
fendant, by  way  of  recognizance,  by  some  person  other  than  the  plaintiff, 
to  the  satisfaction  of  the  authority  signing  the  writ,  that  the  plaintiff  shall 
prosecute  his  writ  with  effect,  and  shall  answer  all  damages,  if  judgment 
be  rendered  against  him.^ 

All  actions  founded  on  any  contract,  express  or  implied,  made  and  en- 
tered into  since  the  first  day  of  January,  1839,  and  all  actions,  founded  on 
any  contract  where  the  defendant  has  absconded  from,  or  is  resident  out  of, 
this  State,  or  is  concealed  within  this  State,  may  be  commenced  by  trustee 
process. 

The  writ,  in  such  case,  authorizes  the  attachment  of  the  goods,  chattels, 
or  estfite  of  the  defendant,  in  his  own  hands,  and  also  any  goods,  effects,  or 
credits,  in  the  hands  of  the  trustees. 

Every  person,  having  any  goods,  effects,  or  credits  of  the  defendant,  in- 
trusted or  deposited  in  his  hands  or  possession,  or  which  shall  come  into  his 
hands  or  possession  after  the  service  of  the  writ  and  before  disclosure  is 
made,  may  be  summoned  as  a  trustee,  and  such  goods,  effects,  and  credit* 
shall  thereby  be  attached,  and  held  to  respond  the  final  judgment  in  the 
suit.     Whatever  any  trustee  may  have  of  the  defendant's  in  his  hands  or 

1  Hartley's  Digest  of  Texas  Laws,  of  1850,  pp.  93  -  100. 

2  Williams's  Compilation  of  Vermont  Laws,  of  1851,  p.  242. 


580  APPENDIX. 

possession,  which  he  holds  against  law  or  equity,  may  be  attached  by  this 
process. 

Any  debt  or  legacy,  due  from  an  executor  or  administrator,  and  any 
other  goods,  effects,  or  credits,  in  the  hands  of  an  executor  or  administrator, 
as  such,  may  be  attached  in  his  hands  by  the  trustee  process. 

AU  coi-porations  may  be  summoned  as  trustees. 

No  person  shall  be  adjudged  a  trustee  in  either  of  the  cases  following, 
to  wit :  — 

1.  By  reason  of  any  money  or  other  thing  due  from  him  to  the  defend- 
ant, unless  it  is,  at  the  time  of  the  service  of  the  writ  on  him,  due  abso- 
lutely and  without  depending  on  any  contingency ;  nor,  2.  By  reason  of 
any  debt  due  from  him  on  a  judgment,  so  long  as  he  is  liable  to  an  execu- 
tion on  the  judgment. 

Any  money,  or  other  thing  due  to  the  defendant,  may  be  attached  by 
the  trustee  process  before  it  has  become  payable,  provided  it  be  due  abso- 
lutely and  without  any  contingency ;  but  the  trustee  shall  not  be  com- 
pelled to  pay  or  deliver  it  before  the  time  appointed  therefor  by  the  con- 
tract. 

Trustees  may  be  examined  on  oath,  touching  the  effects,  &c.,  of  the 
defendant  in  their  hands ;  but  the  answer  of  a  trustee  under  oath  is  not 
conclusive  in  deciding  how  far  he  is  chargeable  ;  but  either  party  may 
allege  and  prove  any  facts  that  may  be  material  in  deciding  that  ques- 
tion.^ 

There  are  numerous  provisions  in  the  laws  of  this  State  in  relation  to 
trustees,  but  it  is  not  deemed  necessary  to  present  them  here. 

VIRGINIA. 

When  any  suit  is  instituted  for  any  debt,  or  for  damages  for  breach  of 
any  contract,  on  affidavit  stating  the  amount  and  justice  of  the  claim,  that 
there  is  a  present  cause  of  action  therefor,  that  the  defendant  is  not  a  res- 
ident of  this  State,  and  that  the  affiant  believes  he  has  estate  or  debts  due 
him  within  the  county  or  corporation  in  which  the  suit  is,  the  plaintiff  may 
forthwith  sue  out  of  the  clerk's  office  an  attachment  against  the  estate  of  the 
non-resident  defendant  for  the  amount  so  stated. 

On  affidavit  at  the  time  of  or  after  the  institution  of  any  suit,  that  the 
plaintiff's  claim  is  believed  to  be  just,  and,  where  the  suit  is  to  recover  specific 
personal  property,  stating  the  nature,  and,  according  to  the  affiant's  belief, 
the  value  of  such  property,  and  the  probable  amount  of  damages  the  plain- 
tiff will  recover  for  the  detention  thereof,  or  where  it  is  to  recover  money 
for  any  claim  or  damages  for  any  wrong,  stating  a  certain  sum  which  (at 
the  least)  the  affiant  believes  the  plaintiff  is  entitled  to,  or  ought  to  recover, 

1  Williams's  Compilation  of  Vermont  Laws,  of  1851,  pp.  254  -258. 


APPENDIX.  581 

and  an  affidavit  also,  that  the  affiant  believes  that  the  defendant  is  removing 
or  intends  to  remove  such  specific  property,  or  his  own  estate,  or  the  pro- 
ceeds of  the  sale  of  his  property,  or  a  material  part  of  such  estate  or  proceeds, 
out  of  this  State,  so  that  process  of  execution  on  a  judgment  in  said  suit, 
■when  it  is  obtained,  will  be  unavailing ;  in  any  such  case  the  clerk  shall 
issue  an  attachment.  If  the  suit  be  for  specific  property,  the  attachment 
may  be  against  the  specific  property  sued  for,  and  against  the  defendant's 
estate,  for  so  much  as  is  sufficient  to  satisfy  the  probable  damages  for  its 
detention  ;  or,  at  the  option  of  the  plaintiff,  against  the  defendant's  estate, 
for  the  value  of  such  specific  property,  and  the  damages  for  its  detention. 
If  the  suit  be  to  recover  money  for  a  claim,  or  damages  for  a  wrong,  the 
attachment  shall  be  against  the  defendant's  estate,  for  the  amount  specified 
in  the  affidavit,  as  that  which  the  affiant  believes  the  plaintiflT  is  entitled  to 
or  ought  to  recover. 

An  attachment  may  issue  before  a  claim  is  due  and  payable,  upon  com- 
plaint supported  by  affidavit  that  the  debtor  intends  to  remove,  or  is  remov- 
ing, or  has  removed  his  effects,  out  of  this  State,  so  that  there  will  probably 
not  be  therein  sufficient  effects  of  the  debtor  to  satisfy  the  claim  when  judg- 
ment is  obtained  therefor,  should  the  ordinary  process  of  the  law  be  used  to 
obtain  such  judgment ;  and  upon  further  affidavit  of  the  amount  and  justice 
of  the  claim,  and  at  what  time  the  same  is  payable. 

An  attachment  also  lies  for  rent,  where  complaint  is  made,  supported  by 
affidavit,  that  the  tenant  intends  to  remove,  or  is  removing,  or  has  within 
thirty  days  removed,  his  effects  from  the  leased  premises. 

Attachments  (except  where  sued  out  specially  against  specified  property) 
may  be  levied  upon  any  estate,  real  or  personal,  of  the  defendant,  and  gar- 
nishees may  be  summoned,  who  are  required  to  answer  on  oath. 

Equitable  claims  for  money  or  property  may  be  enforced  by  suit  and 
attachment  in  chancery,  upon  affidavit  being  made  as  in  actions  at  law.^ 

•WISCONSIN. 

In  order  to  obtain  an  attachment,  the  plaintiff,  or  some  person  in  his  be- 
half, must  make  an  affidavit,  stating  that  the  defendant  is  indebted  to  the 
plaintiff,  and  specifying  the  amount  of  such  indebtedness,  as  near  as  may  be, 
over  and  above  all  legal  set-ofi^,  and  that  the  same  is  due  upon  contract, 
express  or  implied,  or  upon  judgment  or  decree,  and  that  the  deponent 
knows,  or  has  good  reason  to  believe,  either,  — 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond  from  this 
State,  or  that  he  is  concealed  therein  to  the  injury  of  his  creditors  ;  or, 

2.  That  the  defendant  has  assigned,  disposed  of,  or  concealed,  or  is  about 
to  assign,  dispose  of,  or  conceal  any  of  his  property,  with  intent  to  defraud 
his  creditors ;  or, 

1  Revised  Statutes  of  Virginia,  of  1849,  pp.  600-605 


582  APPENDIX. 

3.  That  the  defendant  has  removed,  or  is  about  to  remove,  any  of  his 
property  out  of  this  State,  with  intent  to  defraud  his  creditors;  or, 

4.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
respecting  which  the  suit  is  brought ;  or, 

5.  That  the  defendant  is  not  a  resident  of  this  State ;  or, 

6.  That  the  defendant  is  a  foreign  corporation ;  or, 

7.  That  the  defendant  has  fraudulently  conveyed  or  disposed  of  his  prop- 
erty, or  a  part  of  it,  or  is  about  fraudulently  to  convey  or  dispose  of  the 
same,  or  a  part  of  it,  with  intent  to  defraud  his  creditors. 

The  writ  authorizes  the  attachment  of  so  much  of  the  lands,  tenements, 
goods,  chattels,  moneys,  and  effects  of  the  defendant,  not  exempt  from  exe- 
cution, wheresoever  the  same  may  be  found  within  the  county,  as  will  be 
sufficient  to  satisfy  the  plaintiff's  demand. 

If  the  plaintiff,  or  any  one  in  his  behalf,  make  affidavit  that  he  verily  be- 
lieves that  any  person  (naming  him)  has  property,  credits,  or  effects  (describ- 
ing the  same),  in  his  possession  belonging  to  the  defendant,  or  is  indebted 
to  the  defendant,  and  deliver  the  same  to  the  officer  having  the  writ,  the 
officer,  if  he  cannot  attach  such  property  and  get  possession  thereof,  shall 
summon  such  person  as  garnishee  ;  who  is  required  to  answer  under  oath 
all  questions  put  to  him  touching  the  property,  credits,  and  effects  of  the  de- 
fendant in  his  possession,  or  within  his  knowledge,  and  as  to  all  debts  due 
or  to  become  due  from  him  to  the  defendaflt.^ 

TERRITORY     OF     NEBRASKA. 

In  an  action  for  the  recovery  of  money,  the  plaintiff  may  cause  any  prop- 
erty of  the  defendant,  which  is  not  exempt  from  execution,  to  be  attached, 
at  the  commencement  or  during  the  progress  of  the  proceedings. 

The  petition  must  set  forth  the  grounds  of  attachment,  and  must  be  sworn 
to.     It  must  state  that  as  the  affiant  verily  believes  the  defendant  is 

1.  A  foreign  corporation,  or  acting  as  such  ;  or, 

2.  Is  a  non-resident  of  the  Territory  ;  or, 

3.  Is  in  some  manner  about  to  dispose  of,  or  remove  his  property  out  of 
the  Territory,  without  leaving  sufficient  remaining  for  the  payment  of  his 
debts ;  or, 

4.  Has  disposed  of  his  property,  in  whole  or  in  part,  with  intent  to  de- 
fraud his  creditors ;  or, 

5.  Has  absconded,  so  that  the  ordinary  process  cannot  be  served  upon 
him ;  or, 

6.  That  he  has  property  not  exempt  from  execution  which  he  refuses  to 
give  in  security  of  payment  of  his  debt. 

If  the  plaintiffs  demand  is  founded  on  contract,  the  petition  must  state 

1  Revised  Statutes  ofWisconsin,  of  1849,  pp.  587-592. 


APPENDIX.  683 

as  nearly  as  practicable  the  amount  due  and  when  payable.  If  not  founded 
on  contract,  the  petition  must  be  presented  to  some  judge  of  the  Supreme 
or  District  Court,  or  Judge  of  Probate,  who  shall  make  an  allowance  there- 
on of  the  amount  in  value  of  property  that  may  be  attached. 

An  attachment  may  issue  before  the  debt  becomes  due,  when  nothing 
but  time  is  wanting  to  fix  an  absolute  indebtedness,  and  when  the  petition, 
in  addition  to  that  fact,  states  that  the  defendant  is  about  to  dispose  of  his 
property  with  intent  to  defraud  his  creditors,  or  that  he  is  about  to  remove 
from  the  Territory,  and  refuses  to  make  any  arrangement  for  securing  the 
payment  of  the  debt  when  it  falls  due,  and  which  contemplated  removal 
was  not  known  to  the  plaintiff  at  the  time  the  debt  was  contracted. 

Before  any  property  can  be  attached,  the  plaintiff  must  file  with  the 
clerk  a  bond  for  the  use  of  the  defendant,  Avith  sureties,  to  be  approved  by 
the  clerk,  in  a  penalty  at  least  double  the  value  of  the  property  sought  to 
be  attached,  and  in  no  case  less  than  two  hundred  and  fifty  dollars,  condi- 
tioned that  the  plaintiff  will  pay  all  damages  that  the  defendant  may  sustain 
by  reason  of  the  wrongful  suing  out  of  the  attachment. 

The  sheriff  is  required  to  attach  property  fifty  per  cent  greater  in  value 
than  the  amount  to  be  secured  by  the  attachment. 

In  an  action  on  the  bond,  the  defendant  may  recover,  if  he  shows  that 
the  attachment  was  wrongfully  sued  out,  and  if  wilfully  wrong  he  may  re- 
cover exemplary  damages.  And  he  need  not  wait  until  the  principal  suit  is 
determined,  before  he  brings  suit  on  the  bond. 

Garnishees  may  be  summoned.  A  sheriff  or  constable  may  be  garnished 
for  money  of  the  defendant  in  his  hands.  So  may  a  judgment  debtor  of 
the  defendant,  when  the  judgment  has  not  been  previously  assigned,  and 
also  an  executor,  for  money  due  from  the  decedent  to  the  defendant.^ 

TERRITORY     OP     NEW     MEXICO. 

Creditors  whose  demands  amount  to  fifty  dollars  or  more  may  sue  their 
debtors  in  the  circuit  court,  by  attachment  in  the  following  cases :  — 

1.  When  the  debtor  is  not  a  resident  of,  nor  resides  in,  this  Territory. 

2.  When  the  debtor  has  concealed  himself,  or  absconded,  or  absented 
himself  from  his  usual  place  of  abode  in  this  Territor}',  so  that  the  ordinary 
process  of  law  cannot  be  passed  upon  him. 

3.  When  the  debtor  is  about  to  remove  his  property  or  effects  out  of  this 
Territory  ;  or  has  fraudulently  concealed  or  disposed  of  his  property  or  ef- 
fects, so  as  to  defraud,  hinder,  or  delay  his  creditors. 

4.  When  the  creditor  is  about  fraudulently  to  convey  or  assign,  conceal 
or  dispose  of,  his  property  or  effects,  so  as  to  hinder,  delay,  or  defraud  his 
creditors. 

5.  When  the  debt  was  contracted  out  of  this  Territory,  and  the  debtor 

1  Laws  of  Nebraska,  of  1857,  ch.  31,  pp.  93  - 102. 


684  APPENDIX. 

has  absconded,  or  secretly  removed  his  property  or  effects  into  the  Territory, 
with  the  intent  to  hinder,  delay,  or  defraud  his  creditors. 

In  order  to  obtain  an  attachment  an  affidavit  must  be  made  by  the  plain- 
tiff or  some  person  for  him,  and  a  bond  executed. 

The  affidavit  must  state  that  the  defendant  is  justly  indebted  to  the  plain- 
tiff, after  allowing  all  just  credits  and  offsets,  in  a  sum,  to  be  specified,  and 
on  what  account,  and  that  the  affiant  has  good  reason  to  believe,  and  does 
believe,  the  existence  of  one  or  more  of  the  causes  above  recited  as  entitling 
the  plaintiff  to  sue  by  attachment. 

The  bond  must  be  executed  by  the  plaintiff  or  some  responsible  person  as 
principal,  and  two  or  more  securities,  residents  of  the  county  in  which  the 
action  is  to  be  brought,  in  a  sum  at  least  double  the  amount  sworn  to,  pay- 
able to  this  Territory,  conditioned  that  the  plaintiff  shall  prosecute  his  action 
without  delay  and  with  effect,  and  refund  all  sums  of  money  that  may  be 
adjudged  to  be  refunded  to  the  defendant,  and  pay  all  damages  that  may 
accrue  to  any  defendant  or  garnishee  by  reason  of  the  attachment,  or  any 
process  or  judgment  thereon.  This  bond  may  be  sued  on  in  the  name  of 
the  Territory,  by  any  party  injured. 

The  writ  of  attachment  commands  the  sheriff  to  attach  the  defendant  by 
all  and  singular  his  lands  and  tenements,  goods,  moneys,  effects,  and  credits, 
in  whosesoever  hands  they  may  be  found ;  and  under  it  garnishees  may  be 
summoned,  who  are  required  to  answer  on  oath  written  allegations  and  in- 
terrogatories.^ 

TERRITORY     OF     UTAH. 

An  attachment  issues  in  this  Territory,  when  an  affidavit  is  made  by  a 
creditor  that  the  defendant  is  indebted  to  him  by  note  or  book  account,  and 
is  not  a  resident  of  the  Territory,  or  is  about  to  leave  the  county  or  Terri- 
tory, removing  his  effects  with  the  intention,  as  affiant  believes,  of  defraud- 
ing his  creditors. 

If  there  be  not  sufficient  property  found  to  satisfy  the  debt  and  cost,  gar- 
nishees may  be  summoned.^ 

TERRITORY     OF     WASHINGTON. 

In  an  action  for  the  recovery  of  money,  the  plaintiff,  at  the  time  of  issu- 
ing the  summons,  or  at  any  time  afterwards,  may  have  the  property  of  the 
defendant  attached,  as  a  security  for  the  satisfaction  of  such  judgment  as  he 
may  recover. 

An  attachment  is  issued  by  the  clerk  of  the  court  in  which  the  action  is 
brought,  whenever  the  plaintiff,  his  agent  or  attorney,  shall  make  affidavit 
that  a  cause  of  action  exists  against  the  defendant,  specifying  the  amount  of 

1  Laws  of  New  Mexico,  of  1851,  pp.  39-41.  2  l^ws  of  Utah,  1851,  p.  62. 


APPENDIX  585 

the  claim,  over  and  above  all  legal  set-offs,  and  the  nature  thereof,  and  that, 
as  the  affiant  verily  believes,  the  defendant  is  either 

1.  A  foreign  corporation  ;  or, 

2.  A  non-resident  of  this  Territory  ;  or, 

3.  Is  secretly  leaving,  or  has  left  the  Territory,  with  intent  to  hinder, 
defraud,  or  delay  his  creditors  ;  or, 

4.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  with  like 
intent ;  or, 

0.  Is  removing,  or  about  to  remove,  his  property,  subject  to  execution,  or 
a  material  part  thereof,  out  of  this  Territory,  not  leaving  enough  therein  to 
satisfy  the  claim  of  the  plaintiff;  or, 

6.  Has  concealed,  or  is  attempting  to  conceal  himself,  so  that  the  ordi- 
nary process  of  law  cannot  be  served  upon  him. 

No  attachment,  for  the  second  and  third  causes  above  stated,  shall  issue 
against  any  debtor  while  his  family  remains  settled  within  the  county  where 
he  usually  resided,  prior  to  his  absence,  if  he  shall  not  continue  absent  from 
the  Territory  more  than  one  year  after  he  shall  have  absented  himself,  un- 
less an  attempt  be  made  to  conceal  his  absence. 

If  the  wife  or  family  of  the  debtor  shall  refuse  or  be  unable  to  give  an 
account  of  the  cause  of  his  absence,  or  the  place  where  he  may  be  found,  or 
shall  give  a  false  account  of  either,  such  refusal,  inability,  or  false  account 
shall  be  deemed  an  attempt  to  conceal  his  absence. 

Before  the  writ  issues,  the  plaintiff,  or  some  one  on  his  behalf,  must  exe- 
cute a  bond,  with  sufficient  surety,  to  be  approved  by  the  clerk,  payable  to 
the  defendant,  to  the  effect  that  the  plaintiff  will  duly  prosecute  his  proceed- 
ing in  attachment,  and  will  pay  all  damages  which  may  be  sustained  by  the 
defendant,  if  the  proceedings  of  the  plaintiff  shall  be  wrongful  and  oppres- 
sive. 

Real  and  personal  property,  and  shares  of  stock  and  corporations,  may  be 
attached. 

Personal  property  may  be  released  from  attachment  by  giving  bail  to  the 
action ;  and  may  be  released  from  the  sheriff's  custody  by  giving  a  delivery 
bond. 

Garnishees  may  be  summoned.  In  order  thereto,  the  plaintiff,  or  some 
one  on  his  behalf,  must  file  with  the  clerk  an  affidavit  that  he  has  good  rea- 
son to  believe  that  any  named  person  has  property  of  the  defendant,  of  any 
description,  in  his  possession,  or  under  his  control,  which  the  sheriff  cannot 
attach  ;  or  that  such  person  is  indebted  to  the  defendant,  or  has  the  control 
or  agency  of  any  property,  money,  credits,  or  effects.  Thereupon  the  clerk 
issues  a  summons  to  the  person  named,  to  appear  and  answer  as  garnishee. 
Any  creditor  of  the  defendant,  upon  filing  his  affidavit  and  bond,  as  re- 
quired of  the  attaching  creditor,  may  at  any  time  before  the  final  adjourn- 
ment of  the  suit,  become  a  party  to  the  action,  file  his  complaint,  and  prove 


686    .  APPENDIX. 

his  claim  or  demand  against  the  defendant,  and  may  have  any  person  sum- 
moned as  garnishee.  The  money  realized  by  the  attachment  shall  go  first 
to  satisfy  the  first  attaching  creditor ;  and  if  anything  i-emain  it  must  be 
divided,  pro  rata,  among  the  other  creditors.^ 

1  Laws  of  Washington,  passed  at  the  First  Session  of  the  Legislative  Assembly,  in 
February,  1854,  pp.  155-162. 


INDEX. 


INDEX. 


A. 

ABATEMENT,  sbction 

when  defendant  may  ple^d  In,  to  attachment  ....  405,  409 

when  attachment  is  pleadable  in 700,  701 

ABSCONDING  DEBTORS, 

who  are  regarded  as 48-53 

ABSENT  DEBTORS, 

who  are  regarded  as 39-47 

notice  to,  by  publication 436-449 

ACCOUNT, 

action  of,  may  be  instituted  by  attachment 23 

ACCOUNT-BOOKS, 

not  attachable,  unless  authorized  by  statute 249 

ADMINISTRATOR, 

not  suable,  as  such,  by  attachment       .......       81 

unless  he  make  himself  personally  liable 82 

property  in  hands  of,  which  will  belong  to  defendant  as  a  distrib- 
utee, after  settlement  of  accounts,  is  not  attachable        .         .         .     251 
not  chargeable,  as  such,  as  garnishee  before  order  of  distribution 

or  payment,  but  is  so  afterward 496  497 

AGENT, 

of  corporation  may  make  affidavit 37 

not  chargeable  as  garnishee,  when 514 

AFFIDAVIT, 

for  attachment,  under  custom  of  London,  is  merely  of  defendant's 

indebtedness g 

in  this  country  it  includes  also  special  grounds  for  the  issue  of  the 

writ g 

may  be  made  by  agent  of  a  corporation 37 

omission  of,  cannot  be  supplied 84 

cannot  be  amended,  unless  amendment  be  authorized  bv  statute  .       84 


590  INDEX. 

AFFIDAVIT  (continued),  section 

when  insufficient,  in  ex  parte  proceedings,  to  confer  jurisdiction, 

a  sale  under  the  attachment  confers  no  title       ....  88 

is  part  of,  and  must  appear  in,  the  record 90 

authentication  of      ........         •  91 

who  may  make    ...  .......       93 

when  and  how  made  by  agent  or  attorney 94 

as  to  amount  and  nature  of  the  debt     ......  95,  96 

different  descriptions  of 97-100 

may  contain  several  different  grounds  .         .         .         .         .         .101 

if  any  one  of  several  difierent  grounds  be  true,  it  will  sustain  the 

attachment 101 

when  vitiated,  by  stating  several  grounds  disjunctively        .        .         .101 

when  not  thereby  vitiated 102 

should  follow  the  language  of  the  statute 103 

uncertainty  in,  will  vitiate  it     .         .         .         .         .         .         .         .         104 

surplusage  in,  not  inconsistent  with  the  substantial  averments,  will 

not  vitiate 105 

positiveness,  knowledge,  information,  and  belief  must  appear,  as 

required  by  statute       .         .         .         .         .         .         .         .         .106 

substantial  compliance  with  statute,  sufficient   .         .         .        .        .         107 

insufficient,  cases  of .108 

if  two  of  the  same  import  be  made,  the  second  will  be  disregarded    .         109 
insufficient  as  to  one  of  two  joint  debtors,  will  not  justify  attach- 
ment against  both  110 

may  be  made  before  the  day  of  issuing  the  writ        .         .        .         .         Ill 
defects  in,  may  be  taken  advantage  of,  by  motion  to  quash  or  dis- 
solve the  attachment 112 

amendment  of,  when  allowed 113 

AJSIENDMENT, 

of  affidavit  for  attachment,  cannot  be  made,  unless  authorized  by 

statute 84 

of  affidavit  for  attachment,  when  admissible 113 

of  attachment  bond 146-148 

of  return  of  attachment 211-220 

of  declaration,  without  altering  or  increasing  demand  sued  on,  will 

not  dissolve  attachment     ........         285 

of  answer  of  garnishee 650 

ANSWER, 

of  corporation,  as  garnishee,  how  made 472 

what  garnishee  should  state  in 629-632 

evasion  or  equivocation  in,  effect  of          ......  633 

importance  of  fulness  and  explicitness  in 634 

need  not  conform  to  technical  rules  of  pleading         ....  637 

if  as  full  as  garnishee  can  make  it,  will  be  sufficient       ....  638 

need  not  be  confined  to  matters  within  Karnishee's  own  knowledge  639 


INDEX.  591 

ANSWER  (continued),  section 

what  garnishee  may  be  required  to  state  in  ...  .  641  -  649 
garnishee  cannot  be  required  to  state  in,  a  matter  which  would 

deprive  him  of  a  defence  against  his  liability  to  defendant  .  .  644 
nor  that  he  has  been  guilty  of  a  violation  of  law  ....  645 
nor  anything  that  will  impair  or  impeach  his  title  to  real  estate  .  .  646 
statements  of  others  may  be  incorporated  in,  but  garnishee  is  not 

compellable  to  use  them 649 

may  be  amended,  when         .........     650 

effect  to  be  given  to  ........         651  -  655 

construction  to  be  given  to    .         .         .         .         .         .         .  656  -  658 

judgment  on     ..........        .         659 

ASSAULT  AND  BATTERY, 

in  action  for,  attachment  will  not  lie     .         .         .  .         .       10 

ASSIGNEE  IN  BANKRUPTCY, 

not  chargeable  as  garnishee       .......;         511 

ASSIGNMENT, 

garnishee  may  set  up    .         . .     522 

when  set  up  may  be  impeached         .......  523 

is  not  effected  by  a  mere  direction  to  pay     .         .         .         .         .  .525 

particular  form  of,  not  material          .......  526 

equitable,  will  hold  the  property,  if  notice  be  given  to  garnishee 

in  time  to  make  it  known  to  court          .         .         .         .         .  .527 

conflicting,  cannot  be  tried  in  the  attachment  suit     ....  531 

equitable,  of  debt  will  prevent  its  attachment 604 

ATTACHMENT, 

origin  of,  is  in  the  custom  of  London  .         .         .         .         .         .1-3 

its  nature  and  distinctive  features  .         .         .         .         .         .  4-6 

is  a  special  remedy  at  law,  belonging  to  a  court  of  law      .         .         .  4  a 

differences  between  attachment  under  the  custom  of  London  and 

in  the  United  States 5 

tendency  to  enlarge  the  operation  of        .....         .  7 

under  the  custom,  is  grounded  on  actions  of  debt  ....         9 

debt  for  which  issued  must  be  such  as  will  sustain  an  action  at  law  .  9 

cannot  be  grounded  on  equitable  debts  ......         9 

in  the  United  States,  generally  allowed  only  to  creditors  .         .  10 

will  not  lie  in  actions  for  tort        .         .         .         .         .         .         .         .10 

will  lie  for  unliquidated  damages  arising  ex  contractu         .         .  13-23 

but  not  unless  the  contract  itself  afford  a  rule  for  ascertaining  the 

damages         .         .         .         .         .         .         .         .         .         .31-34 

in  what  cases  it  will  lie,  when  authorized  in  action  for  "  the  re- 
covery of  money  '*      .         .         .         .         .         .         .         .         .        34  a, 

corporation  may  sue  by         .........       37 

will  lie  aga'n>t  one  or  more  of  several  defendants      ....  38 


692  INDEX 

ATTACHMENT  (continued),  section 

against  absent  debtors,  cases  concerning 39-47 

against  absconding  debtors 48-53 

against  debtors  concealing  themselves  .        .        .        .        .        .        54-56 

against  non-resident  debtors      . 57-68 

against  debtors  removing  their  property 69-71 

against  debtors  fraudulently  disposing  of  their  property     .         .  72-77 

will  lie  against  corporations  .         .         .         .         .         .         .         78-80 

will  not  lie  against  representative  persons,  as  such    ....  81 

will  lie  against  administrator  or  executor  who  makes  himself  per- 
sonally liable 82 

may  be  dissolved  or  quashed,  for  defects  in  affidavit  .         .        .         112 

may  be  avoided,  when  issued  without  bond,  where  bond  is  required  115,  116 
but  will  justify  officer,  unless  the  defect  appear  on  the  face  of  the 

writ 117 

party  causing  to  issue,  and  officer  issuing,  without  bond,  liable  as 

trespassers .         .118 

if  legal  in  form,  and  issued  by  a  court  having  jurisdiction,  will 

justify  officer  in  executing         .         .         .         .         .         .        .         185 

person  specially  deputed  to  serve,  has  all  the  powers  of  an  officer         •     186 

should  be  levied  on  sufficient  property 190 

should  be  executed  as  soon  as  practicable     .         .        .         .        .        .191 

execution  of,  should  be  a  continuous  act 192 

service  of,  effected  by  unlawful  or  fraudulent  means,  is  illegal  and 

void 193 

service  of,  if  not  conformable  to  law,  no  lien  is  created  .  .  .  1 94 
service  of,  must  be  so  made  as  to  do  no  wrong  to  defendant  .         .     1 94 

should  not  be  levied  on  property  not  liable  to  attachment  .         .         195 

levied  on  property  not  the  defendant's,  officer  is  a  trespasser  .  196,  197 
what  will  amount  to,  for  which  trespass  will  lie  .         .         .         .         198 

of  goods  of  a  stranger,  intermixed  with  those  of  defendant,  rules 

concerning    .         .         .         .         .         .         .         .         .         .         .199 

return  of,  rules  concerning 204  -  220 

mere  issue  of,  has  no  force  against  defendant's  property,  but  a 

levy  is  necessary   .         .         .         .         .         .         .         .         .         .221 

effect  and  office  of  levy  of 221-228 

precedence  of,  in  relation  to  judgments  and  executions         .         .      229,230 

and  as  to  time  of  service 231 

of  real  estate,  doctrines  concerning         .         .         .         .         .  232-242 

of  personal  property,  doctrines  concerning  ....       244  -  259 

simultaneous,   successive,   conflicting,   and    fraudulent,   doctrines 

concerning     .........  260  -  289 

caused  by  a  debtor,  without  the  knowledge  of  his  creditor,  when 

good 281 

improvidently  issued,  how  defeated 397-410 

dissolution  of,  how  produced,  and  effect  of  ....  411-435 
when  a  defence,  and  the  manner  of  pleading  it     .         .         .  699-723 

malicious,  action  for  .         .         .         .         .         .         .         .         .       724  -  745 


INDEX.  693 

ATTACmiENT  BOND,  section 

nature  of 114 

when  required  to  be  given  before  the  attachment  issues,  a  failure 

so  to  give  it  is  fatal 115,116 

absence  or  insufficiency  of,  does  not  make  the  officer  executing 

the  writ  a  trespasser 117 

but  the  plaintiif,  and  the  officer  issuing  the  writ,  are,  in  such  case, 

liable  as  trespassers 118 

must  appear  in  the  record  .  .  .  .  .  ,  .  .  .119 
approval  of,  by  officer  taking  it  need  not  be  indorsed  .  .  .  120 
must  be  actually  executed  and  delivered  before  the  writ  issues  .  .121 
when  executed  and  delivered,  no  agreement  between  the  plaintiff 

and  the  officer,  as  to  any  condition  subsequent  upon  which 

it  is  to  be  unavailable,  is  good 121  a 

accidental  destruction  of,  before  its  retui'n  into  court,  wilj  not 

authorize  the  quashing  of  the  writ  .         .         .         .         .         .122 

effect  of  recitals  in,  as  showing  when  it  was  given     .         .         .         .         123 

sufficiency  of,  may  be  questioned 124 

if  not  such  as  the  law  requires,  it  is  the  same  as  if  none  were  given  .  1 24 
substantially  complying  with  the  statute,  is  sufficient  .  .  .  .124 
objections  to,  must  be  made  before  pleading  to  the  merits  .         .         124 

but  insolvency  of  surety  in,  may  be  taken  advantage  of  after 

pleading    ...........         124 

if  required  to  be  in  a  stated  penalty,  the  execution  of  a  covenant, 

without  a  penalty,  is  not  sufficient 125 

where  statute,  in  one  part,  prescribes  the  terms  of  the  condition, 

and  in  another  part  sets  forth  the  form  of  the  condition,  the 

form  must  be  followed  .         .         .         .         .         .         .         .         .126 

a  misstatement  in,  of  the  court  in  which  the  suit  is  brought  is  a 

fatal  error 127 

but  not  a  misrecltal  of  the  term  of  the  court 127 

date  in,  is  not  necessary,  unless  required  by  statute  .  .  .  .128 
insufficient  description  in,  of  the  parties  or  the  suit,  will  vitiate  it  .  129 
addition  in,  of 'terms  not  required,  will  not  vitiate  it  .  .  .  .  130 
if  required  to  be  given  by  the  plaintiff,  and  no  law  authorizes  it 

to  be  given  by  another,  no  other  can  give  it       .         .         .         .         131 
when  authorized  to  be  given  by  agent  or  attorney,  It  may  be 

given  by  an  attorney  at  law 132 

purporting  to  be  the  act  of  the  plaintiff,  by  an  attorney  in  fact, 

it  will  not  be  held  to  be  a  nullity,  because  no  power  of  attor- 
ney is  produced     133 

in  such  case,  the  authority  will  be  presumed  on  the  hearing  of  a 

motion  to  quash 133 

authority  of  attorney  must  be  questioned  by  plea,  not  by  motion  .  133 
ratification  of,  by  party  whose  name  is  used,  effect  of  .  .  .  .134 
where  sureties  are  required  by  the  law,  without  the  number  being 

stated,  one  will  be  sufficient 134  a 

residence  of  sureties  in,  need  not  be  stated 135 

38 


594  INDEX. 

ATTACHMENT  BOND  (continued),  section 

may  be  given  in  partnership  name  136 

may  be  in  a  greater  sum  than  is  required  by  law,  but  not  in  a  less  .  139 
where  the  attachment  is  issued  without  an  oath  stating  the 
amount  actually  sued  for,  the  bond  must  be  in  double  the 
amount  of  damages  stated  in  the  writ,  in  assumpsit ;  in  debt, 
in  double  the  amount  of  the  debt  stated  in  the  writ  .  .  .  140 
a  misrecital  in,  of  the  amount  sworn  to,  making  the  amount  of 
the  bond  appear  less  than  double  the  amount  sued  for,  will 

not  vitiate  the  bond 142 

defect  in,  cannot  be  taken  advantage  of  by  a  subsequent  attacher     .         143 
exception  to,  on  account  of  defects  in,  must  be  taken  m  limine      .         .     144 
insolvency  of  sureties  in,  cannot  authorize  a  requirement  of  ad- 
ditional security,  unless  so  provided  by  law  .....     145 
defective,  may  be  amended  by  the  substitution  of  a  new  and  per- 
fect one,  where  the  law  authorizes  amendment  of  bond      .         .         147 
application  to  amend,  must  contemplate  the  removal  of  all  objec- 
tions to  the  bond 148 

amended,  is  substituted  for  that  originally  given,  and  sustains  the 

attachment  ab  initio  ........      148  a 

new  surety  in,  may  be  substituted,  where  the  plaintiff  needs  the 

testimony  of  a  surety     .........     149 

liability  of  obligors  in,  to  defendant,  is  not  impaired  by  errors  and 

defects  in  the  bond 150 

executed  without  being  required  by  law,  is  yet  good  as  a  com- 
mon law  bond        .         .         .         .         .         •         .         .         .         .     151 

obligation  of,  extends  on  to  the  final  determination  of  the  suit  .         152 

execution  of,  does  not  supersede  action  for  malicious  attachment  .         .154 
is  not  merely  a  security  for  what  may  be  recovered  in  an  action 

for  malicious  attachment    .         .         .         .         .         .         .         .         155 

recovery  on,  is  not  restricted  to  such  damages  as  may  be  re- 
covered in   an   action    for   malicious    prosecution,   but   will 
embrace  actual  damage  sustained  .         .....    155-161 

action  on,  can  be  maintained  only  by  the  defendant  .         .         .         162 

action  on,  cannot  be  sustained  until  the  attachment  shall  have 

been  discharged      .         .         .         .         .         .         .         .         .         162a 

in  favor  of  several  defendants,  must  be  in  the  name  of  all  .         .         163 

to  maintain  suit  on,  not  necessary  to  get  order  of  court  to  deliver 

bond  to  defendant 164 

sureties  in,  liable  only  in  reference  to  the  particular  writ  for  ob- 
taining which  it  was  given  .         .         .         .         .         •         .         165' 

to  maintain  action  on,  it  is  not  necessary  to  recover  damages  first 

in  a  distinct  action         .         .         .         .         .         .         .         .         .166 

debt  is  proper  form  of  action  on         .......         167 

in  action  on,  the  declaration  must  show  that  the  attachment  was 

wrongfully  sued  out,  and  what  damages  plaintlflThas  sustained    .         167 
in  action  on,  how  breaches  should  be  assigned       .         .         .         .         .168 

recital  in  condition  of,  that  plaintiff  had  issued  a  writ  of  attach- 


INDEX. 


695 


ATTACHMENT  BOND  (continued),  sectios 

tnent  against  defendant,  estops  the  obligors  from  denying 
that  the  attachment  was  sued  out 169 

action  on,  does  not  lie  for  mere  failure  to  prosecute  the  attach- 
ment      170 

in  action  on,  where  the  attachment  suit  was  ex  parte,  what  the 

declaration  must  allege 171 

in  action  on,  where  given  to  obtain  an  original  attachment,  the 
obligor  cannot  defend  by  showing  that,  when  he  obtained 
the  attachment,  facts  existed  which  would  have  justified  an 
ancillary  attachment 172 

in  action  on,  where  the  attaching  plaintiff,  in  obtaining  the  at- 
tachment, complied  with  all  the  requirements  of  the  law,  the 
defendant  must  show  that  it  was  wrongfully  obtained         .         .         173 

in  action  on,  the  failure  of  the  attaching  plaintiff  to  sustain  his 
action,  is  prima  facie  evidence  to  sustain  the  action  on  the 
bond,  but  not  conclusive 173 

if  the  attachment  plaintiff  recovered  a  less  sum  than  the  law  au- 
thorized an  attachment  to  issue  for,  it  is  complete  evidence 
that  the  attachment  was  wrongfully  obtained     .         .         .         .         173 

in  action  on,  it  is  no  defence  that  the  return  on  the  attachment 
does  not  show  that  a  levy  was  made,  if  a  levy  de  facto  was 
made        .         .         .         •        •         •         •         •         •         •         .       173  a 

nor  is  it  a  justification  or  mitigation,  that  the  claim  sued  on  was 
a  just  one,  if  the  statutory  ground  for  attachment  did  not 
exist 173  a 

in  action  on,  the  question  of  good  faith,  or  probable  cause,  is  not 

involved 174 

in  action  on,  actual  damage  may  be  recovered  .         .        .         .         1 74 

in  action  on,  what  actual  damages  may  be  recovered  .         .         .     175-181 

liability  of  attachment  plaintiff  on,  exists,  as  well  where  the  at- 
tachment is  sued  out  by  his  attorney,  as  where  sued  out  by 
himself 182 

an  administrator  giving  such  bond  is  liable  thereon  individually        .         183 

ATTORNEY  AT  LAW, 

may  make  affidavit  for  attachment  .  .  .  •  ,  .  •  .94 
may  give  attachment  bond  .  .  .  .  .  •  •  •  132 
may  be  garnished         .......•••     515 


B. 

BAIL, 

defendant  may  give,  and  dissolve  attachment         .        .        .  312-317 

BAIL  BOND, 

may  be  given,  at  any  time  before  judgment  .         .         .         .312,313 

effect  of  giving         .........         317-321 

after   giving,  the   pi'operty  is   no   longer   under   control   of  the 

court    ............     321 


596  INDEX. 

BAIL  BOND  (continued),  section 

is  available  to  plaintiif,  only  for  satisfaction  of  such  judgment  as 

he  may  recover 322 

obligation  of,  what  will  not  discharge 323 

BAILMENT  OF  ATTACHED  PROPERTY, 

nature  and  terms  of         .......         .         344  -  348 

bailee  is  the  servant  of  the  officer 349 

does  not  destroy  the  lien  of  the  attachment  ....  351,  352 
officer  may  retake  property  from  bailee  .  .  .  .  .356,  357 
if  bailee  let   the  property  go  back  into  defendant's  hands,   or 

abandon  it,  the  attachment  is  dissolved       ....         359,  360 
liability  of  officer  for  fidelity  and  pecuniary  ability  of  bailee    .  361-364 

officer's  liability  to  defendant  for  bailed  property  .         .         .         .365 

rights  of  bailee  in  the  property 366-3G9 

duties  of  bailee  in  regard  to  the  property 370 

remedies  of  officer  for  a  disturbance  of  his  possession  of  attached 

property 371 

remedies  of  officer  against  bailee 372 

officer  has  no  right  of  action  against  bailee,  until  after  demand  on 

him 373 

execution  under  which  demand  is  made  must  be  regular       .        .         .375 

demand  on  bailee  need  not  be  personal 376 

bailee  must  be  informed  that  the  property  is  demanded  for  the 

purpose  of  being  subjected  to  execution 377 

demand  upon  one  of  several  bailees,  sufficient  .  .  .  .  .  378 
form  of  action  against  bailee         .         .         .         .         .         .         .         .379 

what  will  establish  conversion  by  bailee 380 

defences  by  bailee         ........  381  -  392 

measure  of  recovery  against  bailee    ......        393-395 

judgment   against   bailee  is   discharged  by  satisfaction  of  that 

against  defendant 396 

BANK-NOTES, 

may  be  attached 244 

BANKRUPTCY, 

of  defendant,  does  not  dissolve  attachment 435 

c. 

CAUSE  OF  ACTION, 

for  which  attachment  will  lie •        9-34 

CHANGE  OF  DEMAND, 

in  attachment  suit,  will  dissolve  attachment  as  to  subsequent  at- 
taching creditors 282 

CHOSE  IN  ACTION, 

husband's  interest  in  that  of  wife,  can  it  be  attached  ?  .  .  .247 
garnishee  not  chargeable  for 481 


rsDEX.  597 

CLERK  OF  COURT,  section 

money  in  hands  of,  virtute  officii,  not  attachable   .....  251 

not  subject  to  garnishment  in  respect  thereof 509 

CONCEALMENT, 

of  himself,  by  a  debtor,  a  ground  of  attachment    .        .        .        .       54-56 

CONFUSION  OF  GOODS, 

docti-ine  of,  in  regard  to  attachments 199 

CONSIDERATION, 

failure  of,  may  be  pleaded  by  garnishee  against  his  liability  to  de- 
fendant           679 

CONTINGENCY, 

debt  dependent  on,  will  not  sustain  an  attachment  ....  24 

nor  can  garnishee  be  made  liable  in  respect  thereof     ....  551 

CONSPIRACY, 

action  for,  may  be  maintained  by  a  creditor  against  his  debtor  and 

a  third  person,  for  fraudulent  attachment           .         .         .         .  277 

CORPORATION, 

may  sue  by  attachment 37 

agent  of,  may  maiie  affidavit     ........  37 

may  be  sued  by  attachment  as  a  non-resident       .....  79 

foreign  character  of,  how  determined         ......  80 

stock  in,  not  attachable,  without  express  statute 244 

civil  death  of,  dissolves  attachment  .......  434 

domestic,  may  be  garnished  .......  469-471 

how  to  answer  as  garnishee       .         .         .         .         .         .         .         .  472 

foreign,  may  not  be  garnished      .         .         .         .         .         .         .         .477 

chartered  in  several  States,  may  be  garnished  in  any  of  them  .         .  478 
municipal,  can  it  be  garnished  ?     .         .         .         .        .         .        .        .516 

taxes  due  to,  not  attachable      ....  516 

COSTS, 

garnishee  not  liable  for,  when  he  does  not  assume  the  attitude  of 

a  litigant 662 

aliter,  if  he  denies  indebtedness,  and  is  found  indebted     .         .        .  662 

CREDITOR, 

who  is,  that  may  obtain  attachment 12 

who  has  received  property  in  pledge  for  his  debt,  may  attach 

without  returning  the  pledge 35 

CREDITOR'S  BILL, 

can  it  be  maintained  by  an  attaching  creditor  ? 225 


598  INDEX. 

CUSTODY  OF  ATTACHED  PROPERTY,  section 

must  be  continued    ..........         291 

what  diligence  in  preserving,  is  required  of  officer        ....     292 

what  will  dispense  with 294 

what  will  not  dispense  with 295  -  306 


D. 

DAJVIAGES, 

unliquidated,  arising  ex  contractu,  will  sustain  attachment,  if  the 
contract  furnish  a  standard  by  which  they  may  be  ascer- 
tained   .         .         .         •         •         •         •         •         •         .         .13-23 

but  not,  where  such  is  not  the  case 32-34 

what  may  be  recovered  in  suit  on  attachment  bond        .         .         .175-182 
against  officer,  for  failing  to  have  attached  property  forthcoming 

on  execution 309,  310 

claim  against  garnishee  for  unliquidated,  will  not  charge  him   .         .         548 
rule  of,  in  actions  for  malicious  attachment  .  ...     745 

DEATH, 

of  defendant,  effect  on  attachment .•        .        433 

DEBT, 

action  of,  is  foundation  of  attachment  by  the  custom  of  London  . 
nature  of,  for  which  attachment  may  be  obtained  in  this  country, 
must  be  actual,  and  not  merely  possible  and  contingent    . 
not  due,  when  may  be  proceeded  on  by  attachment 
equitable  assignment  of,  will  be  protected  by  courts 

DEBTORS, 

absent,  absconding,  concealed,  and  non-resident    .... 

removing  their  property 

fraudulently  disposing  of  their  property 

DELIVERY  BOND, 

may  be  given  for  property  attached 

no  sot  form  of  words  necessary  to  constitute          .... 
addition  to,  of  terms  not  required  by  statute,  does  not  invalidate 
difference  between  It  and  bailment  of  attached  property,  and  be- 
tween It  and  bail  bond 

does  not  discharge  the  lien  of  the  attachment       .... 
by  executing,  defendant  acknowledges  notice  of  suit 
cannot  be  given  by  any  but  one  authorized  by  statute 
when  calls  for  delivery  of  property  at  a  specified  place,  no  de- 
mand necessary 

surety  In,  how  he  may  exonerate  himself 

when  he  may  be  made  liable 

what  will  not  discharge  him  ..... 


. 

9 

13 

-23 

24 

25 

-30 

604 

39 

-68 

69 

-71 

72 

-77 

327 

. 

328 

329 

330, 

331 

331 

, 

332 

• 

333 

334 

335, 

,  336 

, 

338 

, 

339 

INDEX.  699 

DELIVERY  BOXD  {continued),  skctioh 

given  by  party  other  than  defendant,  claiming  to  be  the  owner 
of  the   property,  he   must  deliver   the   property,  and   then 

claim  it     ..........         .  340 

obligoi-s  in,  if  prevented  by  act  of  God,  are  excused  from  delivery  341 

measure  of  recovery  ou         ........         .  342 

DEMURRER 

will  not  lie,  because  the  cause  of  action  will  not  sustain  an  at- 
tachment    36 

DISBURSING  OFFICER 

of  government,  not  chargeable  as  garnishee,  in  respect,  of  money 

in  his  hands  to  be  paid  to  defendant      .         .         .         .         .         .512 

DISSOLUTION  OF  ATTACHMENT, 

fraud  in  attachment  will  produce,  as  to  subsequent  attachers    .         273-275 
change  or  increase  of  demand  will  produce,  as  to  subsequent  at- 
tachers         282 

amendment  of  declaration,  without  altering  or  increasing  cause 

of  action,  will  not  produce     ........  285 

produced  by  Introduction  of  new  defendants 287 

referring  the  action  and  aU  demands  to  arbitration     .         .  288 

destroys  officer's  special  property  in  goods  attached           .         .         .  306 

discharges  lien  of  attachment 411 

is  caused  by  repeal  of  law  under  which  the  attachment  issued  .         .  414 

is  caused  by  judgment  for  defendant 415 

is  not  produced  by  misrecital  in  writ         ......  420 

may  be  produced  by  acts  of  officer 423  -430 

when  produced  by  acts  of  officer's  servants         ....         431,432 

is  produced  by  death  of  defendant 433 

Is  not  produced  by  bankruptcy  of  defendant 435 

DWELLING-HOUSE, 

may  not  be  entered,  against  owner's  will,  to  levy  an  attachment  .         .  200 

but  may  be,  to  seize  property  of  a  stranger  secreted  there        .        .  200 


E. 
EFFECT  OF  ATTACHMENT 

dates  from  time  of  its  service 221 

EQUITABLE  ASSIGNMENT, 

of  property  in  garnishee's  hands,  will  prevent  its  attachment  for 

debt  of  assignor 527 

of  debt,  owing  by  garnishee,  will  protect  it  from  attachment  for 

debt  of  assignor     ..........     604 

^alid,  according  to  the  law  of  the  assignor's  domicile,  will  be  sus- 
tained elsewhere G05 


600  INDEX. 

EQUITABLE  ASSIGNMENT  (continued),  section 

notice  of  should  be  given  to  debtor 606 

garnishee,  receiving  notice  of,  should  state  it  in  his  answer       .         .         607 
will  protect  rights  of  assignee,  though  no  notice  be  given  before 

the  attachment,  if  given  before  judgment  .         .         .         .608 

of  debt  evidenced  by  writing,  may  be  by  delivery  of  the  writing  609 

what  will  constitute 610,  611 

may  be  made,  of  debt  not  due 612 

but  there  must  be  an  actual  debt,  due  or  to  become  due   .        .        .        613 

may  be  made  verbally 614 

good  faith  of,  may  be  questioned 615 

EXECUTION, 

of  attachment,  rules  concerning 184-202 

property  exempt  from,  cannot  be  attached 244 

(/See  Levy.) 

EXECUTOR, 

may  not  be  sued  by  attachment    .         . 81 

not  chargeable  as  garnishee,  in  respect  of  a  legacy    .        .        .        .        499 


F. 

FAILURE  OF  CONSIDERATION, 

may  be  pleaded  by  garnishee,  against  his  liability  to  defendant    .        .679 

FORTHCOMING  BOND, 

(See  Delivery  Bond.) 

FRAUDULENT  ATTACHMENT, 

may  be  assailed  and  defeated  by  subsequent  attaching  creditor  273-275 
attaching  creditor  injured  by,  may  maintain  action  for  .  .  .  276 
when  overturned,  when  brought  in  conflict  with  rights  of  third 

persons,  not  attachers    .........     289 

FRAUDULENT  DISPOSITION  OF  PROPERTY, 

when  a  ground  of  attachment  .         .         .         .         .         .         .72-77 

GARNISHEE, 

defendant's  property  in  hands  of,  cannot  be  levied  on  .         .         .251 

so  called  because  he  is  garnished,  or  warned,  not  to  pay  to  de- 
fendant    ...........         451 

effects  of  defendant  in  his  hands  are  effectually  attached  by  his 

garnishment       ..........         453 

his  rights,  after  garnishment,  in  the  defendant's  effects  In  his  hands        .     453 
his  property  is  not  affected  by  the  garnishment         ....         454 

prior  transactions  between  him  and  defendant,  not  affected  retro- 
actively by  tlie  garnishment  ......  454  a 

equities  between  him  and  defendant  cannot  be  settled  in  garnish- 
ment proceeding        .........        457 


INDEX.  601 

GARNISHEE  (continued),  section 

can  be  made  liable,  only  to  the  extent  of  his  liability  to  defendant        .    458 
can  be  held,  only  so  long  as  plaintiff  has  a  right  to  enforce  his  de- 
mand against  defendant     ........         459 

can  be  no  judgment  against,  till  there  is  judgment  against  de- 
fendant   460 

nor  unless  it  be  shown  affirmatively  that  he  is  liable  .         .         .         461 

not  to  be  placed  in  a  worse  condition  by  the  garnishment,  than  he 

would  be  in,  if  sued  by  defendant 462 

not  chargeable  in  respect  of  property  to  be  delivered  to  defendant 

in  another  State 462  a 

general  basis  of  his  liability  ........     463 

instances  of  his  liability,  where  defendant  has  no  present  cause  of 

action  against  him      .........         464 

not  liable  for  real  estate  of  defendant 465 

domestic  corporation  may  be     .         .         .         .         .         .         .         .         469 

in  such  case,  the  rules  as  to  liability  are  the  same  as  where  an 

individual  is  garnished  . 471 

corporation  summoned  as,  how  to  answer  .....         472 

only  a  resident  of  London  can  be  held  as,  under  the  custom         .        .     473 
a  non-resident  of  a  State  cannot  be  held  as,  unless  he  have  there 
property  of  the  defendant,  or  be  bound  to  pay  the  defendant 
money  or  deliver  him  goods  there     .         .         .         .         .  474, 475 

but  one  of  several  debtors  may  be,  though  the  others  are  non- 
residents       ...........     476 

foreign  corporation  cannot  be  .         .         .         .         •     »  •         •         •         477 

unless  it  has  agreed  to  be  sued  in  a  State  other  than  that  in  which 

it  was  formed         ..........     477 

a  corporation  chartered  by  several  States,  may  be  garnished  in 

any  of  them       .         .         .     .  •  .         .         .         .         .         .         .         478 

not  chargeable  for  personalty  which  cannot  be  sold  under  exe- 
cution   ............     479 

not  chargeable  on  account  of  locked  trunks  or  boxes  of  the  de- 
fendant in  his  possession 480 

not  chargeable  for  clioses  in  action  of  defendant  in  his  hands  .  .  481 
property  of  defendant  must  be  in  actual  possession  of  .  .  .  482 
not  chargeable  for  property  which  he  did  not  know  to  be  defend- 
ant's, and  parted  with  before  he  knew  it  was  so  .  .  .  482 
cannot  be  charged  on  account  of  constructive  possession  .  .  .  483 
may  be  charged  on  account  of  money  collected  by  his  agent  for 

defendant 484 

his  possession  of  defendant's  property  must  be  in  privity  of  con- 
tract and  of  interest  with  defendant      485-490 

public  officer  cannot  be  charged  as,  in  respect  of  money  In  his 

hands  as  such     .         .         .         .         .         .         .         .         .         .         493 

no  person  can  be  charged  as,  who  derives  his  authority  from  the 

law,  and  is  obliged  to  execute  it  according  to  law  .         .        .     494 

administrator  not  chargeable  as        ...        .  .        .        496 


602  INDEX. 

GARNISHEE  (continued),  section 

until  he  is  ordered  by  court  to  pay  to  a  creditor  of  the  estate       .        .497 
■where  by  statute  an  administrator  may  be,  a  distributive  share 
cannot  be  attached  in  his  hands  before  he  has  settled  his 

account 498 

executor  not  chargeable  as,  in  respect  of  a  legacy        ....    499 

guardian  not  chargeable  as 502 

sheriff  not  chargeable  as,  in  respect  of  money  in  his  hands  col- 
lected under  execution  .  ...    503-506 

nor  in  respect  of  an  execution  in  his  hands        .....         507 

but  may  be  as  to  a  surplus  of  money  over  what  is  necessary  to 

satisfy  the  execution      .         .         .         .         .         .         .         .         .508 

clerks  of  courts  not  chargeable  as,  in  respect  of  moneys  in  their 

hands  in  their  official  capacity 509 

receivers,  trustees  of  courts,  and  trustees  accountable  to  courts, 

not  chargeable  as 509  a 

justices  of  the  peace,  receiving  money  collected  on  executions, 

not  chargeable  as 510 

trustees  of  insolvents  and  assignees  in  bankruptcy  not  charge- 
able as 511 

disbursing  officers  not  chargeable  as 512 

public  agent,  not  being  an  officer,  may  be  held  as         ...         .     513 

private  agent  having  money  wliich  he  was  authorized  to  pay  to 
defendant,  but  has  not  agreed  with  defendant  to  do  so,  is  not 
chargeable  as     .........         .•        514 

attorneys  at  law  may  be       .........     515 

municipal  corporations,  can  they  be  ? 516 

a  State  cannot  be 616 

liability  of,  as  affected  by  previous  contracts  touching  the  defend- 
ant's property  in  his  hands        ......         517-520 

liability  of,  as  affected  by  assignments,  liens,  mortgages,  or  pledges    521  -  540 
to  charge  him  as  a  debtor  of  defendant,  the  defendant  must  have 

a  cause  of  action  against  him      .......         541 

rights  of  defendant  against,  pending  the  garnishment,  are  only 

partially  excluded 542 

plaintiff  may  be,  in  his  own  case       .......         543 

can  be  charged  only  for  a  debt .      544,  545 

there  must  be  privity  of  contract  and  interest 646 

j/-    the  debt  must  be  a  legal,  as  contradistinguished  from  an  equi- 
table one 547 

not  liable  on  account  of  a  claim  for  unliquidated  damages         .         .         648 
or  under  a  contract  of  indemnity,  where  no  loss  has  occurred        .         .     549 
debt  of,  must  be  due  in  money  .......         550 

debt  of,  must  be  absolutely  payable,  and  not  dependent  on  a  con- 
tingency         551 

contingent  debt,  what  is 551,  552 

not  chargeable,  wliere  something  remains  to  be  done  before  de- 
fendant can  recover  of  him   ........     553 


INDEX.  603 

GARNISHEE  (continued),                                                                           section 
is  chargeable  in  respect  of  a  debt  not  yet  due  and  payable          .      557-559 
any  one  of  several  joint  debtors  of  defendant  may  be  charged  as       .         560 
in  such  case,  payment  by  one  not  garnished  will  discharge  gar- 
nishee   560 

one  of  several  joint  debtors  garnished,  may  avoid  liabiKty  on  the 

ground  of  the  non-joinder  of  the  others      .         .         ,         .         ,         561 
a  member  of  a  firm,  all  of  whom  were  named  in  the  writ,  but  part 

only  served,  may  be  charged  as     .         .         .         .         .         .         .562 

but  not  where  the  partners  not  summoned  reside  in  a  foreign 

country 564 

answer  by  one  of  a  fii'm  which  has  been  garnished,  will  authorize 

a  judgment  against  all  the  partners        ......     564 

liability  of,  as  affected  by  the  number  of  the  defendants  and  the 

number  of  his  creditors       .         .         .         .         .         .         .        566-572 

liability  of,  as  a  party  to  an  unnegotiable  note       .         .         .  574-581 

liability  of,  as  a  party  to  a  negotiable  note        ....        582-592 

liability  of,  as  affected  by  previous  contracts  .         .         .  593-  597 

liability  of,  as  affected  by  a  fraudulent  attempt  by  the  defendant 

to  defeat  the  payment  of  his  debts 598-601 

liability  of,  as  affected  by  an  equitable  assignment  of  the  debt        602  -  615  a 
liability  of,  as  affected  by  legal  proceedings  against  him  by  de- 
fendant for  the  recovery  of  the  debt  .         .         .         .        616-627 
answer  of,  must  be  by  him  in  person     .         .         .         .         .         ,         .628 
must  state  all  facts  necessary  to  enable  the  court  to  decide  his 

liability 629 

IS  not  estopped  from  denying  liability,  by  any  previous  admissions  629  a 

should  state  every  fact  which  had  destroyed  his  relation  as  debtor 

to  defendant 630 

where  the  same  person  is.  In  several  suits,  he  should  bring  that 

fact  to  the  notice  of  the  court  In  his  answer  .         .         .  630  a 

cannot  state  facts  in  his  answer,  which  change  the  terms  of  a 

written  contract 631 

if  not  indebted  to  defendant,  he  should  so  declare ;  if  he  be  in 

doubt,  he  should  state  the  facts,  and  leave  the  matter  to  the 

court 632 

he  should  avoid  evasion  or  equivocation    ......         633 

his  answer  should  be  full  and  explicit  .......     634 

when  full  and  explicit,  the  court  will  protect  him  from  further 

interrogatories  ..........         635 

answer  of,  need  not  conform  to  the  technical  rules  of  pleading      .         .637 
answer  of.  If  as  good  as  he  can  make,  will  be  sufficient      .         .         .         638 
maj  state  matters  not  of  his  own  knowledge         .         .         .         .         .639 

may  be  required  to  make  statement  of  his  accounts  with  defendant    .     639  a 
may  be  required  to  answer  interrogatories  as  to  his  having  been  a 

party  to  a  fraudulent  sale      ........     640 

may  have  the  correctness  of  an  Interrogatory  determined  by  the 

court 641 


604  INDEX. 

GARNISHEE  {continued),  section 

interrogatories  to,  must  be  confined  to  such  matters  as  are  the 

ground  of  his  liability 642 

will  be  protected  against  impertinent  and  vexatious  questions  .         .         643 
will  not  be  required  to  state  anything  that  will  deprive  him  of  a 

defence  against  his  debt  to  defendant    ......     644 

nor  anything  showing  him  to  have  committed  a  violation  of  law        .         645 
nor  anything  tending  to  impair  or  impeach  his  title  to  real  estate  .         .     646 
may,  at  his  option,  make  statements  of  others  a  part  of  his  an- 
swer   649 

may  amend  his  answer         .........     650 

effect  to  be  given  to  his  answer         ......        651-655 

construction  to  be  given  to  his  answer  ....  656-658 

judgment  against  defendant  should  be  shown  in  the  record,  to  sus- 
tain that  against  garnishee         .......      658  a 

judgment  against,  need  not  be  taken  at  the  same  time  as  that 

against  defendant 658  6 

defendant  may  show  ground  for  not  rendering  judgment  against 

garnishee  ..........      658  c 

should  have  a  fair  hearing  on  the  question  of  his  liability     •         .  658  d 

permitting  judgment  against  him,  by  his  negligence,  is  without 

relief 658  e 

judgment  on  answer  of,  rules  concerning 659 

extent  of  his  liability  is  determined  by  the  amount  in  his  hands, 
not  exceeding  amount  of  plaintiff's  judgment  against  de- 
fendant      660 

may  discharge  himself,  by  delivering  into  court  the  defendant's 

property  in  his  hands 661 

is  not  liable  for  costs,  where  he  does  not  assume  the  attitude  of  a 

litigant 662 

aliter  if  he  denies  indebtedness,  and  is  found  indebted  .         .        .     662 

cannot  be  charged  if  plaintiff  get  satisfaction  of  his  debt  otherwise    .         663 
his  liability  for  interest /jenrfen^e /iVe     ......     664-666 

IS  liable  only  for  what  was  in  his  hands  when  garnished  .  .  .  667 
is  Wahle  for  debitum  i7i  prcesenti,  solvendum  in  futuro  .  .  .557,668 
is  liable  for  debt  uncertain  as  to  amount,  but  the  amount  of  whichi 

is  afterwards  made  certain 669 

may  make  any  defence  he  could  against  suit  by  defendant  .         .672 

may  show  that  plaintiff's  claim  has  been  satisfied  .  .  .  .  673 
voluntary  payment  by,  after  garnishment,  is  no  defence  against 

garnishment 674 

setting  up  payment,  must  show  that  it  was  made  before  his  gar- 
nishment ..........      674 o 

payment  b}',  under  pi-cvious  garnishment,  discharges  his  liability  .     675 

payment  by,  after  garnishment,  on  irregular  execution  in  favor  of 

defendant,  will  not  discharge  him 676 

previous  voluntary  payment  by,  to  a  creditor  of  his  creditor,  will 

not  discharge  him 677 


INDEX.  605 

GARNISHEE  (continued),  s£cnoN 

may  plead  statute  of  limitation  against  his  liability  to  defendant       .         678 

may  plead  failure  of  consideration 679 

if  discharged  from  his  contract  by  the  default  of  defendant,  he 

cannot  be  charged  as  his  garnishee   ......         680 

when  and  where  he  may  set  up  equitable  defences  .  .  ,  .681 
defences  by,  must  be  such  as  would  avail  him  as  a  defence  in  an 

action  by  defendant  against  bun 682 

may  plead  set-off  to  his  liability  to  defendant  ....  683-688 
cannot  avail  himself  of  an  equitable  claim  by  way  of  set-off  .  .  689 
where  liable  on  account  of  defendant's  property  in  his  hands,  he 

cannot  plead  set-off  unless  he  has  a  lien  on  the  property        .         .     690 

his  relation  to  the  main  action 691-698 

must  see  that  the  court  has  jurisdiction  of  both  the  defendant  and 

himself 692-696 

may  reverse  judgment  against  himself,  if  the  court  had  not  juris- 
diction of  defendant  .         .         .         .         .         .         .         .         696 

has  no  right  to  inquire  into  the  regularity  of  proceedings  in  the 
main  action,  if  the  court  has  jurisdiction  of  both  defendant 

and  himself .         .         .     697 

if  obliged,  as  garnishee,  to  pay  his  debt,  he  shall  not  be  required 

to  pay  it  again  to  defendant 699 

if  sued  by  defendant,  may  plead  prior  garnishment  in  abatement  .     700 

and  such  prior  garnishment  is  good  ground  for  suspending  pro- 
ceedings in  defendant's  suit        .......         701 

where  sued  by  defendant  in  one  court,  and  garnished  in  another, 

the  priority  of  the  proceedings  will  determine  the  right         .         .     702 
garnishment  of,  is  no  defence  to  an  action  by  an  assignee  of  the 

debt 703  a 

may  plead  attachment  in  bar  of  interest  on  his  debt,  pendente  lite  .  704 
plea  by,  of  a  pending  attachment,  in  abatement,  what  it  must  show  .  705 
judgment   against,  and  satisfaction  thereof  by, .  where  court  has 

jurisdiction,  is  conclusive  against  parties  and  privies      ...         .     706 
judgment  In  favor  of,  is  conclusive  against  the  plaintiff,  though 

obtained  by  fraud 706  a 

discharge  of,  is  no  bar  to  an  action  by  defendant  .         .         .         .707 

judgment  against,  does  not  bar  defendant  from  recovering  more 

from  garnishee  than  he  was  charged  for     .         .         .         .         .         707 
satisfaction  by,  of  judgment  against  him  as  garnishee,  is  necessary 
to  constitute  a  defence  to  an  action  by  the  defendant  against 

him 708 

judgment  against,  is  no  defence  to  an  action  by  defendant,  where 
the  attaching  plaintiff,  by  his  laches,  cannot  issue  execution 

on  it 709 

payment  by,  of  judgment  against  him,  is  a  bar  to  action  by  de- 
fendant ...........     710 

payment  by,  how  sustained 711 

facts  necessary  to  sustain  such  pajonent  must  appear  iii  the  record 

in  the  attachment  suit 712 


606  INDEX, 

GARNISHEE  (continued^,  section 

not  responsible  for  the  regularity  of  the  proceedings  in  the  attach- 
ment suit  ..........         713 

to  sustain  attachment  as  a  defence,  there  must  be  no  neglect,  col- 
lusion, or  misrepresentation  on  his  part  .....     714 

in  such  case  it  must  appear  that  the  debt  for  which  he  was  charged 

was  the  same  as  that  for  which  he  is  sued  by  defendant      .         .         715 
where  charged,  by  default,  without  answer,  he  may  show  by  parol 

proof,  that  the  debt  was  the  same 716 

if,  before  judgment,  he  learn  of  an  assignment  of  his  debt,  he  must 
make  it  known  to  the  court,  or  the  judgment  wiU  not  pro- 
tect him     ...........         717 

should  be  notified  by  the  assignee  of  the  assignment  of  the  debt   .      718,  719 
recovery  against,  how  pleaded  .......         722 

in  pleading  it,  he  is  not  bound  to  show  that  the  attaching  plaintiff 

had  a  sufficient  cause  of  action 723 

GARNISHMENT, 

is  in  the  nature  of  a  proceeding  in  rem 452 

is  a  suit 452 

effect  of 453 

cannot  be  extended  beyond  reaching  the  defendant's  property  in 

the  hands  of  garnishee  . 454 

attachments  by,  take  precedence  in  order  of  service  •         .         .  455 

is  a  legal  and  not  an  equitable  proceeding 457 

does  not  confer  any  greater  rights  against  garnishee  than  defend- 
ant has 458 

effect  of,  continues  only  so  long  as  plaintiff  has  a  right  to  enforce 

his  claim  against  defendant 459 

operates  on  credits 544 

GUARDIAN, 

of  Infant  or  insane  person,  not  liable  to  garnishment,  on  account 

of  property  of  his  weird     .  502 


H. 

HEIRS, 

may  not  be  sued  as  such  by  attachment 81 

HUSBAND, 

interest  of,  in  wife's  choses  in  action,  is  it  attachable  ?        .        .        .        247 


IMPROVIDENT  ATTACHMENT, 

what  is         .         .         .         .         .         .         .         •         .         •         ♦         .397 

may  be  defeated 399-410 


INDEX.  607 

INCREASE  OF  DEMAND,  section 

in  attachtueiit  suit,  will  dissolve  attachment,   as  against  subse- 

qiR'ut  attachers 282 

INDEIMNITY, 

contract  of,  garnishee  not  chargeable  in  respect  of   .         .         .         .         549 

INFANT, 

guardian  of,  not  subject  to  garnishment  in  respect  of  property  of 

in  his  hands  . 502 

INSOLVENTS, 

trustees  of,  not  chargeable  as  garnishees 511 

INTEREST, 

garnishee's  liability  for 664  -  666 

INTERROGATORIES, 

to  garnishee,  not  allowed,  after  he  has  fully  answered       .         .         .  635 

can  garnishee  be  charged  for  not  answei'ing  ?.....  636 
tending  to  show  garnishee  to  have  been  a  party  to  a  fraudulent 

sale,  must  be  answered       ........  640 

limit  to,  is  in  the  discretion  of  the  court        ......  641 

must  be  confined  to  such  matters  as  are  the  ground  of  garnishee's 

liability 642 

impertinent  and  vexatious,  not  allowed        ......  643 

IRREGULARITY, 

in  proceedings  of  an  attaching  creditor,  cannot  be  taken  advan- 
tage of  by  other  attachers  .         .         .         .         .         .         .         262 

in  the  judgment  against  defendant,  cannot  be  taken  advantage 

of  by  garnishee      ..........     697 


J. 
JOINT  DEBTORS, 

one  of,  may  be  garnished,  and  subjected  to  a  judgment  for  the 

whole  of  their  debt  to  defendant         .         .         .         .         .         .         560 

JOINT  INTEREST, 

in  real  estate,  may  be  attached     ........     241 

in  personalty,  may  be  attached  .......         248 

JUDGMENT, 

without  service   on   defendant,   or  attachment   of  property  is 

void 449 

against  garnishee,  cannot  be  rendered,  until  there  is  judgment 

against  defendant 460 


608  INDEX. 

JUDGMENT  (continued),  sectiow 

against  defendant,  should  be  shown  in  the  record,  to  sustain  that 

against  garnishee  .........  658  a 

against  garnishee,  need  not  be  taken  at  the  same  time  as  that 

against  defendant 658  6 

against  garnishee,  permitted  by  his  negligence,  cannot  be  relieved 

against 658  c 

against  garnishee  on  his  answer,  rules  concerning        ....     659 

JUDGMENT  DEBTOR, 

may  be  garnished 622-627 

JUSTICE  OF  THE  PEACE, 

not  subject  to  garnishment  in  respect  of  claims  in  suit  before  him  510 


L. 
LEGACY, 

is  not  attachable  in  hands  of  executor  ......     499 

but  where  made  a  charge  on  real  estate,  the  devisee  may  be  gar- 
nished in  respect  of  it 500 

LEGAL  PROCEEDINGS, 

by  defendant  against  garnishee,  effect  of,  on  garnishee's  liability       616-627 

LEVY, 

of  attachment,  rules  concerning 184-202 

necessary  to  effect  a  lien 221 

does  not  change  the  defendant's  estate  in  the  property,  or  confer 

any  property  on  plaintiff       .         .     •    .         .         .         .         .         .  222 

affects  only  the  interest  of  defendant  existing  when  made          .         .  223 

constitutes  a  lien  on  the  property 224 

LJEN, 

if  property  is  subject  to,  when  attached,  it  will  prevail  over  the 

attachment 223 

is  created  by  levy  of  the  attachment     .......     224 

of  attaclmient  extends  only  to  effects   attached,  and  does   not 

reach  constructively  the  property  of  a  garnishee         .         .         .         226 
of  attachment,  is   commensurate  with  the  judgment   recovered, 
though  greater  than  the  amount  for  which  attachment  was 

obtained 227 

is  of  no  value,  unless  plaintiff  get  judgment 228 

definition  of  ...........     532 

if  garnishee  have,  on  property  in  his  hands,  property  cannot  be 

taken 533 

must  exist,  however,  as  distinguished  from  mere  possession   .         .        .     536 


INDEX.  609 

LBflTATION,  SECTION 

statute  of,  may  be  pleaded  by  garnishee  against  his  liability  to 

defendant 678 

LUNATIC, 

.  property  of,  in  hands  of  guardian,  not  attachable  ....    251,  502 


M. 

MALICIOUS  ATTACHMENT, 

action  for,  rules  governing 724  -  745 

MANUFACTURE, 

goods  in  process  of,  not  attachable        .......     250 

MONEY, 

may  be  attached,  and  taken  from  the  defendant's  possession    .        .        244 
in  custodia  legis,  not  attachable    .         .         .         .         .         .         .         .251 

MORTGAGE, 

personal  property  m  garnishee's  hands,  subject  to,  mortgagee  not 

liable  as  garnishee 539 

MOTION  TO  DISSOLVE  ATTACHMENT, 

is  the  proper  course,  where  the  cause  of  action  does  not  author- 
ize attachment      .         .         .         .         .         .         .         •         .  .36 

for  defects  in  affidavit,  when  made •  •         112 

is  based  on  defects  apparent  on  the  face  of  the  proceedings          .  .416 

is  addressed  to  the  discretion  of  the  court           .....  418 

refusal  of  the  court  to  sustain,  does  not  preclude  its  dissolving 

the  attachment  at  the  final  hearing        .         .         .         .         .  .419 

must  precede  defendant's  plea  to  the  merits      .         •         .         •  •         516 

MUNICIPAL  CORPORATION, 

can  It  be  garnished  ?.......«•  516 

taxes  due  to,  cannot  be  attached .516 


N. 
NON-RESIDENTS, 

may  obtain  attachment         .         .        .        .        .        .        .        •        .11 

■when  may  be  proceeded  against  by  attachment  .        .        .  57-68 

cannot  be  garnished,  unless  they  have  property  of  defendant  in 
their   possession,   or   be   bound   to   pay   him  money  in  the 
State  where  garnished .  474-476 

NOTICE  BY  PUBLICATION, 

to  absent  defendant,  when  required 436 

39 


610  INDEX. 

NOTICE  BY  PUBLICATION  (continued),  section 

not  necessary  to  confer  jurisdiction 437 

what  is  sufficient 439-4-14 

insufficiency  of,  does  not  invalidate   title  to  property  acquired 

through  the  attachment 447,  448 

o. 

OFFICER, 

his  duties  in  lev}dng  an  attachment  on  goods     ....        184-203 

acquires,  by  levy,  a  special  property  in  goods 290 

special  property  of,  in  goods,  duration  of 290 

may  maintain  actions  for  violation  of  his  special  property  in  goods 

attached 290 

must  make  his  possession  of  goods  continuous 291 

■what  care  and  diligence  he  is  liable  for,  in  regard  to  attached  ' 

property        ,........••       292 

what  will  excuse  his  failure  to  keep  attached  property  to  answer 

execution  . 294 

what  will  not  excuse  such  failure 295  -  303 

to  fix  his  liability  for  attached  property  on  execution,  demand 

on  him  necessary 805 

failing  to  have  property  forthcoming  on  execution,  rule  of  dam- 
ages against  him    .........     309,  310 

his  expenses  in  keeping  attached  property 311 

public,  not  chargeable  as  garnishee,  for  money  in  his  hands,  pay- 
able to  defendant 493,  494 


P. 

PARTNERSHIP  CREDITS, 

cannot  be  attached  for  debt  of  one  partner      ....         567-570 

PAYMENT, 

voluntary,  by  garnishee,  after  garnishment,  will  not  discharge  him  .  674 
by  garnishee,  under  previous  garnishment,  will  discharge  him  .  .675 
by  garnishee,  on  irregular  execution  in  favor  of  defendant,  after 

garnishment,  will  not  discharge  him 676 

previous,  voluntary,  by  garnishee  to  creditor  of  defendant  will  not 

discharge  him 677 

by  garnishee,  requisites  of  as  a  defence  to  him  against  action  by 

defendant '^l^ 

PERSONAL  PROPERTY, 

which  cannot  be  sold  under  execution,  cannot  be  attached  .         .        .     244 

exempt  from  execution,  not  attachable 244 

the  sale  of  which  is  penal,  not  attachable 244 

not  attachable,  where  defendant  has  lost  his  power  over  it,  or  has 

not  acquired  an  attachable  interest  in  it  .         .         .         .  245,  246 


DsDEX.  611 

PERSONAL  PROPERTY  (continued),  section 

defendant's  interest  in,  in  common  with  others,  may  be  attached  .     248 

of  such  a  nature,  that  an  attachment  of  it  would  injure  defendant, 

without  benefiting  plaintiff,  is  not  attachable     .         .         .         .         249 

in  process  of  manufacture,  not  attachable     ......     250 

in  custodia  leg  Li,  not  attachable  .         .         .         .         .         .         .         251 

in  the  defendant's  use,  may  be  attached        ......     252 

may  be  attached,  though  not  at  the  time  in  defendant's  posses- 
sion .         .        • 253 

In  possession  of  one  not  its  owner,  is  not  attachable  for  his  debt    .         .     254 
must  be  taken  into  officer's  possession,  in  order  to  constitute  an 

attachment        ..........         256 

heavy  and  unmanageable   articles   of,  how  taken   and  held  by 

officer 258 

attached  by  one  officer,  and  in  his  possession,  cannot  be  seized  by 

another 267 

if  officer  lose  his  possession  of,  may  be  attached  by  another  .        .271 

attached,  officer  has  special  property  in     .....         .         290 

what  descriptions  of,  will  charge  garnishee  .         .         .      463,479-481 

what  possession  of,  will  charge  garnishee  ....         482-491 

PLEDGEE, 

of  pei'sonalty,  not  liable  as  garnishee  in  respect  thereof        .         .         .     539 

PRIVITY, 

of  contract  and  of  interest,  necessary  to  charge  garnishee        .        485  -  490 

« 
PROMISSORY  NOTE, 

liability  of  maker  of,  as  garnishee  of  payee  ....     573-592 

PUBLICATION, 

notice  by,  to  absent  defendants,  when  required         ....         436 
is  not  necessary  to  confer  jurisdiction  .         .         .         .         .         .         .437 

sufficiency  of 439-446 

insufficiency  of,  does  not  invalidate  title  to  property  acquired 

through  the  attachment         .         .         .         .         .         .         .      447,  448 

PUBLIC  OFFICER, 

is  not,  as  such,  liable  to  garnishment 493 


R. 
REAL  ESTATE, 

may  be  attached,  though  defendant  have  sufficient  personalty      .         .  233 

attachment  of,  reaches  only  interest  of  defendant  in,  when  made       .  234 

interest  of  mortgagee  in,  cannot  be  attached 235 

attachmei't  of,  how  returned 236  -  238 

gives  plaintiff  a  lien 239 


612  INDEX. 

EEAL  ESTATE  (continued),  section 

but  the  officer  acquires  no  special  property 240 

undivided  interests  in,  may  be  attached 241 

REMOVAL  OF  PROPERTY, 

£is  a  ground  of  attachment 69-71 

REPLEVY  BOND, 

(See  Delivery  Bond.) 

REPRESENTATIVE  PERSONS, 

may  not  be  sued  by  attachment 81 

RETURN, 

of  attachment,  rules  concerning 204-220 

of  real  estate,  how  made 236-238 


S. 
SET-OFF, 

when  pleadable  by  garnishee,  against  his  liability  to  defendant         683  -  689 

SHERIFF, 

money  in   hands  of,  collected  on  execution,  not  attachable  m 

action  against  execution  plaintiff 251 

not  subject  to  garnishment  in  respect  thereof   ....        603-506 

*     nor  in  respect  of  an  uncollected  execution 607 

but  may  be,  in  respect  of  a  surplus  in  his  hands,  not  needed  to 

pay  execution   ..........         508 

SIMULTANEOUS  ATTACHMENTS, 

are  entitled,  each,  to  an  aliquot  share  of  the  proceeds  of  attached 

property       ...........     263 

officers  executing,  may  divide  the  property 266 

STORE, 

may  be  entered  to  levy  an  attachment         ......     200 

SUCCESSIVE  ATTACHMENTS, 

take  effect  in  the  order  of  service,  though  served  on  the  same 

day 261 

if  returns  of  all  but  one  state  the  hour  of  service,  that  one  will 

be  postponed  to  the  others 265 

should  be  placed  in  hands  of  same  officer 269 

SURPLUSAGE, 

in  affidavit,  will  not  vitiate  it 105 


DsT)EX.  613 

T. 

TAXES,  SECTION 

due  to  a  municipal  corporation,  cannot  be  attached     .        .        .        .616 

TORT, 

attachment  will  not  lie  for 10 

TRUSTEES, 

may  not  be  sued  by  attachment 81 

of  insolvents,  cannot  be  charged  as  garnishees  in  respect  of  prop- 
erty in  their  hands  as  such 511 


u. 

UNCERTAINTY, 

in  affidavit,  will  vitiate  it     .....•••         •     104 

UNLIQUIDATED  DAMAGES, 

when  will  sustain  attachment 13-23 

when  not 32-34 

claim  against  garnishee  for,  will  not  charge  him        ....        548 

USE, 

of  attached  property  by  officer,  effect  of 203 


THE   END. 


Cambridge  :  Printed  by  Welch,  Bigelow,  &  Co. 


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